Abdel-Malak v. Superior Court of California for the County of San Diego ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABANOOB ABDEL-MALAK, Case No.: 20-CV-1035-CAB-JLB 12 Plaintiff, ORDER GRANTING APPLICATION 13 v. FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND SUA 14 SUPERIOR COURT OF CALIFORNIA SPONTE DISMISSING COMPLAINT FOR THE COUNTY OF SAN DIEGO et 15 al., 16 [Doc. Nos. 2, 3] Defendants. 17 18 Plaintiff Abanoob Abdel-Malak applies to file a complaint, in formal pauperis 19 (“IFP”) against a host of defendants, including the Superior Court for the County of San 20 Diego, the City of San Diego, the County of San Diego, and various other government 21 entities and individuals. The complaint, however, makes scant allegations of anything that 22 these defendants did in this judicial district. Instead, the complaint appears to concern 23 events that happened in Riverside or San Bernardino Counties and involve the courts and 24 law enforcement of those counties. Indeed, a search of court dockets on PACER indicates 25 that Plaintiff has filed numerous lawsuits in the Central District of California against 26 various government entities from Riverside and San Bernardino Counties, and that some 27 of these cases remain pending. All of Plaintiff’s lawsuits, including the one before this 28 1 Court, all appear to arise out of a domestic violence action against Plaintiff that was filed 2 in Riverside County Superior Court.1 3 I. Motion to Proceed IFP 4 Plaintiff moves to proceed IFP under 28 U.S.C. § 1915. All parties instituting any 5 civil action, suit, or proceeding in a district court of the United States, except an application 6 for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An 7 action may proceed despite a plaintiff’s failure to prepay the entire fee only if the plaintiff 8 is granted leave to proceed IFP under 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 9 F.3d 1176, 1177 (9th Cir. 1999). All actions sought to be filed IFP under § 1915 must be 10 accompanied by an affidavit, signed by the applicant under penalty of perjury, that includes 11 a statement of all assets which shows inability to pay initial fees or give security. Civ LR 12 3.2.a. Here, Plaintiff’s application indicates that Plaintiff’s monthly income is less than 13 $400, but also states that Plaintiff owns a 2018 Toyota Prius and has several thousand 14 dollars in monthly expenses. The application does not explain how Plaintiff affords these 15 expenses with such minimal income. Thus, if the complaint survived the sua sponte 16 screening required of any complaint filed IFP, the Court would require Plaintiff to provide 17 additional support for his application to demonstrate that he lacks the financial resources 18 to pay the filing fees and still afford the necessities of life. See Escobedo v. Applebees, 787 19 F.3d 1226, 1234 (9th Cir. 2015); see also 28 U.S.C. § 1915(a). However, as discussed 20 below, even assuming Plaintiff can satisfy the requirements for filing IFP, the complaint is 21 frivolous and is dismissed on that ground. Accordingly, the application for leave to 22 proceed IFP is conditionally granted. 23 II. Sua Sponte Screening 24 A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 25 1915(a) is subject to mandatory and sua sponte review and dismissal should the Court 26 27 1 See Central District of California case numbers 2019cv1808, 2020cv322, 2020cv4783, and 28 1 determine, inter alia, it is frivolous, malicious, or fails to state a claim upon which relief 2 may be granted. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 3 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 4 Congress enacted this safeguard because “a litigant whose filing fees and court costs are 5 assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from 6 filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 7 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)); Lopez v. Smith, 203 F.3d 8 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a 9 district court to dismiss an in forma pauperis complaint that fails to state a claim.”). 10 Here, in addition to being largely incomprehensible, the complaint is frivolous 11 because it “merely repeats pending or previously litigated claims.” Dorsey v. Kreep, No. 12 18-CV-02588-AJB-MSB, 2019 WL 6037420, at *3 (S.D. Cal. Nov. 14, 2019) (quoting 13 Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995)). A review of the federal 14 docket reveals that Plaintiff has filed several complaints against various state government 15 entities and officials within the past year. Several of these other cases were filed and 16 remain pending in the Central District of California, where Plaintiff resides, and where 17 most or all of the alleged wrongful acts in the complaint appear to have occurred. Indeed, 18 the only factual allegations in the complaint in this case concern allegedly false police 19 reports by Riverside police officers and other actions occurring in the Riverside and San 20 Bernardino Courts. Thus, the Central District of California is almost certainly a more 21 appropriate venue for this action as well (assuming this action even differs in any material 22 manner from the actions already pending in that district). In any event, because the other 23 pending actions were filed before this one, the Court exercises its discretion to dismiss this 24 lawsuit in the interest of efficiency and judicial economy. 25 III. Disposition 26 For the foregoing reasons, it is hereby ORDERED as follows: 27 1. The motion to proceed IFP [Doc. No. 2] is GRANTED; 28 2. The complaint is DISMISSED without leave to amend; 1 3. The application for permission for electronic filing [Doc. No. 3] is DENIED AS 2 MOOT; 3 4. The Court certifies that an IFP appeal from this order would be frivolous and 4 therefore would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); 5 and 6 5. The Clerk of Court shall close this case. 7 Itis SO ORDERED. 8 ||Dated: June 8, 2020 (ib 9 Hon. Cathy Ann Bencivengo 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28