In Re: Mamady Cisse ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IN RE Case No.: 23-CV-1781-JO-JLB CISSE, 12 Debtor. ORDER GRANTING REQUEST TO 13 PROCEED IN FORMA PAUPERIS AND TO SHOW CAUSE 14 MAMADY CISSE, 15 Appellant, 16 v. 17 THOMAS BILLINGSLEA; DEUTSCHE 18 BANK NATIONAL TRUST COMPANY, 19 Appellees. 20 21 22 On September 27, 2023, pro se Appellant Mamady Cisse filed a bankruptcy appeal 23 in this Court. Dkt. 1. That same day, Appellant filed a notice of appeal in the bankruptcy 24 court. (Bankr. No. 23-01527, Dkt. 70). However, Appellant has neither filed a designation 25 of the items to be included in the record on appeal nor a statement of the issues to be 26 presented with the bankruptcy court as required under Federal Rule of Bankruptcy 27 Procedure 8009. In addition, on December 6, 2023, Appellant filed an amended motion to 28 proceed in forma pauperis (“IFP”). Dkt. 7. For the reasons set forth below, the IFP motion 1 is GRANTED and the Court ORDERS Appellant to show cause why his appeal should not 2 be dismissed for failure to comply with Federal Rule of Bankruptcy Procedure 8009. 3 I. DISCUSSION 4 A. Motion to Proceed IFP 5 Appellant has not prepaid the civil filing fee and instead has requested to proceed 6 IFP. Dkt. 7. A claimant instituting an appeal in a federal district court must pay a filing 7 fee of $405. 28 U.S.C. § 1914(a); Local Civ. R. 4.5. However, a district court may waive 8 the filing fee by granting the claimant leave to proceed IFP. 28 U.S.C. § 1915(a)(1). To 9 proceed IFP, a claimant must submit an affidavit that includes a statement of all assets and 10 demonstrates an inability to pay the filing fee. 28 U.S.C. § 1915(a); see also Local Civ. R. 11 3.2. An affidavit is “sufficient where it alleges that the [appellant] cannot pay the court 12 costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 13 (9th Cir. 2015) (citation omitted). “The granting or refusing of permission to proceed [IFP] 14 is a matter committed to the sound discretion of the district court.” Skelly v. U.S. Dep’t of 15 Educ., No. 19-1812, 2019 WL 6840398, at *2 (S.D. Cal. Dec. 16, 2019) (quoting Smart v. 16 Heinze, 347 F.2d 114, 116 (9th Cir. 1965)). 17 In support of his IFP motion, Appellant has filed an affidavit explaining his financial 18 circumstances and inability to pay. Dkt. 7. He indicates that he relies on CalFresh to pay 19 for food and that he has a deficit of $760 in his Chase Bank account. Id. at 2. In addition, 20 Appellant’s monthly expenses exceed his monthly income by more than $2,000. Id. at 3, 21 5. Finally, Appellant faces financial hardship in caring for his ailing and disabled mother. 22 Id. at 5. The Court finds that the affidavit has “sufficiently show[n] that he lacks the 23 financial resources to pay filing fees.” Dillard v. So, No. 12-2958, 2013 WL 4857692, at 24 *1 (S.D. Cal. Sept. 11, 2013). Accordingly, the Court GRANTS Appellant’s motion to 25 proceed IFP pursuant to 28 U.S.C. § 1915(a). 26 B. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) 27 Because Appellant is granted leave to proceed IFP, his Notice of Appeal must 28 undergo a sua sponte screening for dismissal. An “appeal” filed by any person proceeding 1 IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and 2 dismissal by the court to the extent it is frivolous, malicious, fails to state a claim upon 3 which relief may be granted, or seeks monetary relief from a defendant immune from such 4 relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 5 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 6 In performing its screening duty, the Court must determine whether Appellant has 7 filed the necessary documents in bankruptcy court to “perfect” his appeal and allow this 8 Court to proceed. A bankruptcy appellant has “the responsibility to file an adequate 9 record.” In re Abrams, 229 B.R. 784, 789 (B.A.P. 9th Cir. 1999). To start the appeal 10 process, “a notice of appeal must be filed with the bankruptcy clerk within 14 days after 11 entry of the judgment, order, or decree being appealed.” Fed. R. Bankr. P. 8002. After the 12 appellant’s notice of appeal becomes effective, the appellant has fourteen days to file with 13 the bankruptcy clerk a designation of the items to be included in the record on appeal and 14 a statement of the issues to be presented. Fed. R. Bankr. P. 8009(a). “The record on appeal 15 must include the following: docket entries kept by the bankruptcy clerk; items designated 16 by the parties; [and] . . . any opinion, findings of fact, and conclusions of law relating to 17 the issues on appeal, including transcripts of all oral rulings.” Fed. R. Bankr. P. 8009(a)(4). 18 Once the record is complete, the bankruptcy clerk transmits “either the record or a notice 19 that the record is available electronically” to the district court. Fed. R. Bankr. P. 20 8010(b)(1). An appellant’s failure to comply with these requirements can be grounds for 21 the district court to dismiss the appeal. Fed. R. Bankr. P. 8003(a). 22 Here, Appellant has not perfected his appeal as required by Federal Rule of 23 Bankruptcy Procedure 8009. Appellant filed his notice of appeal in the bankruptcy court 24 on September 27, 2023 but failed to file (1) a designation of the items to be included in 25 the record on appeal and (2) a statement of the issues to be presented. See Fed. R. Bankr. 26 P. 8009(a). These were due on October 11, 2023, but, to date, Appellant has not filed 27 either item. As a result, on December 5, 2023, the clerk of the bankruptcy court filed 28 1 notice with the Court that Appellant had not complied with this requirement and that his 2 appeal remained unperfected. Dkt. 6. 3 Given this deficiency, the Court ORDERS Appellant to show cause as to why this 4 appeal should not be dismissed for lack of prosecution and failure to comply with the 5 Federal Rules of Bankruptcy Procedure. He has until February 21, 2024 to file his 6 response. Appellant may show adequate cause by perfecting the appeal and taking all 7 necessary steps to ensure the Court receives an adequate record for his appeal by February 8 21, 2024. The Court cautions Appellant that failure to either show adequate cause or 9 perfect his appeal by February 21, 2024 will result in dismissal of this appeal. See, e.g., 10 Fed. R. Bankr. P. 8003(a)(2), 8020(b); Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th 11 Cir. 2010); see also In re Marsh, 19 F. App’x 727, 729 (9th Cir. 2001) (holding that a 12 three month delay in designating the record on appeal was an “inexcusably flagrant 13 violation of the court’s rules” and warranted dismissal). 14 II. CONCLUSION 15 For the reasons set forth above, the Court GRANTS Appellant’s motion to proceed 16 IFP and ORDERS Appellant to show cause why his bankruptcy appeal should not be 17 dismissed for lack of prosecution and failing to comply with the Federal Rules of 18 Bankruptcy Procedure. 19 IT IS SO ORDERED. 20 21 Dated: January 31, 2024 22 Hon. Jinsook Ohta 23 United States District Judge 24 25 26 27 28