Hill v. Kaye

1

CYMEYON HILL, Plaintiff, v. DAVID B. KAYE,^[1] Defendant.

No. 1:22-cv-00929-JLT-HBK (PC)

United States District Court, E.D. California

September 11, 2023

FINDINGS AND RECOMMENDATIONS: TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (DOC. NO. 13) TO GRANT IN PART DEFENDANT'S MOTION TO DISMISS AND TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT AND REQUIRE POSTING OF SECURITY (DOC. NO. 51) FOURTEEN DAY OBJECTION PERIOD

HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE.

Pending before the Court is Defendant's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) and Motion to Declare Plaintiff a Vexatious Litigant and Require Posting of Security Pursuant to 28 U.S.C. § 1651 and Local Rule 151(B) filed on January 13, 2023. (Doc. No. 51, “Motion”). Defendants filed a Request for Judicial Notice in Support of their Motion. (Doc. No. 52). On January 23, 2023, Plaintiff filed three separate pleadings, which the Court liberally construes as Plaintiff's opposition to the Motion declaration in support of Plaintiff's opposition, and supplement to his opposition. (Doc. Nos. 53, 55, 56). For the reasons set forth below, the undersigned recommends the district court revoke Plaintiff's in forma pauperis status and grant, in part, Defendant's Motion.

I. PROCEDURAL BACKGROUND

Plaintiff Cymeyon Hill (“Plaintiff' or “Hill”) initiated this action on July 23, 2021 in the Sacramento Division of this Court by filing a civil rights complaint while he was detained in Salinas Valley State Prison (“SVSP”) located in Soledad, California. (Doc. No. 1). The complaint complained of events that occurred in Monterey and San Mateo Counties. (Id.). Because Monterey and San Mateo County are within the venue and jurisdiction of the Northern District of California, the case was transferred to the Northern District of California. (Doc. No. 4).

On February 3, 2022, the Northern District Court granted Plaintiff in forma pauperis status and dismissed Plaintiff's Complaint with leave to amend. (Doc. Nos. 13, 14). On February 16, 2022, Plaintiff filed his first amended complaint. (Doc. No. 15, “FAC”). At the time he filed his amended complaint, Plaintiff was held at California State Prison in Sacramento. (Id. at 1). According to the amended complaint, on May 23, 2021, during the COVID-19 pandemic, SVSP medical officials referred Plaintiff to Defendant Kaye, an eye specialist, for “emergency treatment,” but Defendant Kaye “refused to give [him] treatment yelling and screaming at [him] stating [his] mask ke[pt] falling off [his] face [and to] get out of here.” (Id. at 3). Plaintiff “tried to correct the issue” by pushing his mask up onto his “facial area,” but Defendant Kaye “called [him] a nigger and refused to treat [his] eye injury and walked out of the doctor ['] s office.” (Id.). As a result, Plaintiff suffered “diminished eye sight [,] ...dizziness [,] and blurred vision[.]” (Id.). Plaintiff sought $2 million for punitive damages. (Id.). The Northern District found “[l]iberally construed, plaintiff's complaint states a cognizable Eighth Amendment claim against Defendant Kaye” and dismissed the complaint with prejudice against Natural Vision Medical Group Employees as defendants. (Doc. No. 17). On June 27, 2022, Defendant Kaye filed a motion to change venue back to the Eastern District since he, as the sole defendant, resides in Fresno County and his office, where the alleged acts of wrongdoing occurred, is in Madera County. (Doc. No. 28). On July 27, 2022, the Northern District court granted the motion and transferred the case back to this Court. (Doc. No. 33).

II. PLAINTIFF'S IN FORMA PAUPERIS STATUS SHOULD BE REVOKED

Prior to addressing Defendant's Motion, the undersigned undertook a full review of the docket and filings, including Plaintiff's applications to proceed in forma pauperis (Doc. Nos. 2, 10) and his inmate fund trust account statement (Doc. No. 11), and finds that Plaintiff had sufficient funds when he initiated this action and when he submitted his applications to proceed in forma pauperis to pay the filing fee in full. Thus, the undersigned recommends that Plaintiff's in forma pauperis status (Doc. No. 13) be revoked, and Plaintiff be ordered to pay the $402.00 filing fee in full to proceed in this action.

Title 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of fees or security thereof' if the plaintiff submits a financial affidavit that demonstrates the plaintiff's “is unable to pay such fees or give security therefor.” A determination of indigency rests within the court's discretion. California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute's requirement of indigency.”). Although an applicant need not be “destitute” a showing of indigency is required. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 33940 (1948) (recognizing that an ability not to be able to pay for oneself and his dependents “the necessities of life” is sufficient). Thus, a plaintiff must allege indigency “with some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).

Despite Plaintiff's places of confinement at SVSP and California State Prison when he filed his initial complaint and his amended complaint, Plaintiff stated he was a “civil detainee” and is not a prisoner.^[2] (Doc. No.1 at 4; Doc. No. 15 at 2). As a civil detainee, Plaintiff nonetheless has “limited overhead” and his necessities, such as food, shelter, and medical care, are provided for him by the state making his situation akin to a prisoner, and “his possession of even modest assets may prelude in forma pauperis status.” Hill v. Agonone, 2023 WL 2394096, at *1 (E.D. Cal. Feb. 22, 2023) (citation omitted), findings and recommendation adopted by, 2023 WL 3379307 (E.D. Cal. May 11, 2023); see also Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (finding that prisoners, unlike non-prisoner litigants, are in state custody “and accordingly have the ‘essentials of life' provided by the government.”). The courts are inclined to reject in forma pauperis applications where an applicant can pay the filing fee with an acceptable sacrifice to other expenses. See, e.g. Casey v. Haddad, 2021 WL 2954009, at *1 (E.D. Cal. June 17, 2021), report and recommendation adopted, 2021 WL 2948808 (E.D. Cal. July 14, 2021) (finding prior balance of $1,000, despite being decreased to $470 shortly before filing action, sufficient to pay $402 filing fee); Riddell v. Frye, 2021 WL 3411876, at *1 (E.D. Cal. July 9, 2021), report and recommendation adopted, 2021 WL 3472209 (E.D. Cal. Aug. 6, 2021) (finding available balance of $1,297.21 sufficient to pay $402 filing fee and denying IFP); Allen v. Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (despite initially being permitted to proceed IFP, ordering plaintiff to pay $120 filing fee in full out of $900 settlement proceeds); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D. Pa. 1982) (denying IFP because “plaintiff possessed savings of $450 and the magistrate correctly determined that this amount was more than sufficient to allow the plaintiff to pay the filing fee in this action.”).

Here, when Plaintiff signed his renewed motion to proceed in forma pauperis on December 28, 2021, he stated under penalty of perjury that he had no cash or assets. (Doc. No. 10).^[3] However, contrary to these averments in his application, Plaintiff's “Inmate Statement Report” provided by the California Department of Corrections and Rehabilitations reflected a balance of $4,247.32 in his account on January 3, 2022. (Doc. No. 11). A litigant's in forma pauperis status is not axiomatic just because one is confined as a civil detainee. While a balance of $4,247.32 appears modest at first blush, it is not inconsequential considering Plaintiff does not incur expenses at the state hospital where he is currently detained for necessities such as sustenance, housing, and medical care. While the Ninth Circuit has held that “the filing fee . . . should not take the litigant's last dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), the information provided by Plaintiff reflects that he had sufficient funds to pre-pay the $402.00 filing fee in full and have adequate funds left over for any incidental personal or commissary expenses.

Consequently, the undersigned RECOMMENDS the district court revoke Plaintiff's in forma pauperis status (Doc. No. 13) because contrary to Plaintiff's statements sworn to under penalty of perjury, Plaintiff had sufficient funds to pay the filing fee at the time he initiated this action and continued to have sufficient financial assets when he filed his first amended complaint.

III. DEFENDANT'S MOTION TO DISMISS

Defendant moves for a dismissal of the first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and additionally seeks to have Plaintiff declared a vexatious litigant and be required to post security. (Doc. No. 51). Defendant filed exhibits in support of their Motion, consisting of the Declaration of counsel (Doc. No. 51-1 at 1-2); excerpts of Plaintiff's medical records with a Declaration of Custodian of Records (Id. at 3-22); and a Declaration from Defendant Dr. Kaye (Doc. No. 51-2). Defendant also concurrently filed a request for judicial notice with his Motion. (Doc. No. 52). Specifically Defendant requested the Court to take judicial notice of various court dockets, complaints, orders granting motions to dismiss, findings and recommendations, orders dismissing each case, judgments, and orders denying certificates of appealability in 28...