1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 In re JORDANA MARINKOVIC Case No.: 24-CV-926 JLS (BLM) BAUMAN, Bankruptcy No.: 24-1264-13-CL 12

Debtor. 13 ORDER (1) GRANTING MOTION TO PROCEED IN FORMA 14 MEL MARIN, PAUPERIS; (2) DENYING 15 Petitioner, PETITION; AND (3) DISMISSING ACTION 16 v. 17 (ECF Nos. 1, 2) CHRISTOPHER LATHAM, 18 Respondent. 19 20 Presently before the Court is Petitioner Mel Marin’s Petition for Writ of Mandamus 21 to Recuse Bankruptcy Judge and/or to Vacate a Prior Dismissal of this Judge and to Stay 22 the Present Bankruptcy Action (“Pet.,” ECF No. 1). Also before the Court is Petitioner’s 23 Motion to Proceed In Forma Pauperis (“IFP Mot.,” ECF No. 2). This case was recently 24 transferred to this Court pursuant to this District’s Low Number Rule. See ECF No. 4. For 25 the reasons below, the Court GRANTS the IFP Motion, DENIES the Petition pursuant to 26

(e)(2), and DISMISSES this action. 27 / / / 28 / / / 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 All parties instituting a civil action, suit, or proceeding in a district court of the 3 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 4

(a). An action may proceed despite a party’s failure to pay the filing fee 5 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 6 § 1915(a)(1). See Rodriguez v. Cook,

(9th Cir. 1999). A federal court 7 may authorize the commencement of an action without the prepayment of fees if the party 8 submits an affidavit, including a statement of assets, showing that she is unable to pay the 9 required filing fee.

(a). 10 As § 1915(a)(1) does not itself define what constitutes insufficient assets to warrant 11 IFP status, the determination of indigency falls within the district court’s discretion. See 12 Cal. Men’s Colony v. Rowland,

(9th Cir. 1991) (“Section 1915 typically 13 requires the reviewing court to exercise its sound discretion in determining whether the 14 affiant has satisfied the statute’s requirement of indigency.”), rev’d on other grounds by 15

(1993). 16 “An affidavit in support of an IFP application is sufficient where it alleges that the 17 affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 18 Applebees,

(9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours 19 & Co.,

(1948)). “One need not be absolutely destitute to obtain benefits 20 of the [IFP] statute.” Jefferson v. United States,

(9th Cir. 1960). 21 “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with some particularity, 22 definiteness and certainty.’” Escobedo,

(quoting United States v. 23 McQuade,

(9th Cir. 1981)). 24 In his IFP Motion, Petitioner declares he is not presently employed and lives on 25 $1,180 a month ($780 in retirement benefits and $400 from an unspecified source). IFP 26 Mot. at 2. He has $120 in his checking accounts and a 2002 Cadillac DeVille that he values 27 at $100.

at 2–3. Per Petitioner, his monthly expenses come to $1,515. Of that total, 28 $800 goes to utilities, food, and transportation, while the rest is allocated to laundry, 1 medical expenses, insurance premiums, credit card debt, and printing costs. Id. at 4. 2 Petitioner’s estimated monthly expenses thus exceed his expected income by $335. 3 The Court finds Petitioner has sufficiently established that he would be unable to 4 pay the filing fee and afford the necessities of life. His IFP Motion is thus GRANTED. 5 SCREENING PURSUANT TO

(e)(2) 6 I. Legal Standard 7 A complaint filed by litigant proceeding IFP is subject to sua sponte dismissal if it 8 is “frivolous, [is] malicious, fail[s] to state a claim upon which relief may be granted, or 9 seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C. 10 § 1915(e)(2)(B); Calhoun v. Stahl,

(9th Cir. 2001) (per curiam) (holding 11 “the provisions of

(e)(2)(B) are not limited to prisoners”); Lopez v. Smith, 12

(9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but 13 requires a district court to dismiss an [IFP] complaint that fails to state a claim.”); Garrett 14 S. v. Kijakazi, No. 22-CV-2006-MMA (WVG),

, at *1–2 (S.D. Cal.

, 2023) (screening petition for writ of mandamus pursuant to § 1915(e)(2)). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 19

(9th Cir. 2012). So, to survive screening, a complaint must “contain 20 sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its 21 face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly, 22

(2007)). 23 Further, courts have a duty to construe a pro se litigant’s pleadings liberally. See 24 Karim-Panahi v. L.A. Police Dep’t,

(9th Cir. 1988). A district court 25 should grant leave to amend if it appears “at all possible that the plaintiff can correct the 26 defect.” Lopez,

(quoting Balistreri v. Pacifica Police Dep’t, 27

(9th Cir. 1988)). 28 / / / 1 II. Discussion 2 Per the Petition, Petitioner and his sister have been embroiled in bankruptcy 3 proceedings for several years. See generally Pet. Petitioner states that, in 2013, 4 Respondent and U.S. Bankruptcy Judge Christopher B. Latham improperly dismissed said 5 proceedings. See id. at 1. In an appeal filed in this District, former Chief Judge Irma 6 Gonzalez vacated Judge Latham’s order after finding Petitioner and his sister had not been 7 provided sufficient opportunity to avoid the dismissal. See id.; In re Bauman, No. 12-CV- 8 2476-IEG RBB,

, at *1–2 (S.D. Cal. Aug. 29, 2013). Since then, 9 Petitioner and his sister have apparently faced several additional dismissals in bankruptcy 10 court, including one issued by Judge Latham in 2016 (the “2016 Dismissal”). See Pet. 11 at 7–8; ECF No. 1-2 at 8–14.1 Petitioner now asks this Court to issue a writ of mandamus 12 directing Judge Latham to (1) vacate the 2016 Dismissal; (2) recuse himself; or (3) transfer 13 the relevant proceedings to a different federal court. See Pet. at 7–8. 14 Unfortunately for Petitioner, this Court does not have the authority to issue a writ of 15 mandamus to the bankruptcy court. See Mullis v. U.S. Bankr. Ct.,

, 1393 16 (9th Cir. 1987); see also Crowley v. U.S. Bankr. Ct., No. 3:12-CV-647-RCJ-VPC, 17

, at *1 (D. Nev. Dec. 12, 2012) (“[T]he Ninth Circuit has ‘recognized 18 that a district court lacks the authority to issue a writ of mandamus to a bankruptcy 19 court . . . .’” (quoting Ayrs v. Greenwald,

, at *1 (9th Cir. 1994))). As the 20 Court cannot grant the requested relief, the Petition is DENIED. 21 Before concluding, the Court notes that since his successful 2013 appeal, Petitioner 22 has continued filing similar actions—though apparently without much interest in actually 23 pursuing them.2 See, e.g., Order Dismissing Appeal, In re Bauman, No. 14-CV-495-BAS 24 25 26 1 Citations to documents attached to the Petition refer to the blue CM/ECF numbers stamped across the top margin of each page. 27

28 2 Additionally, the very theory raised in the Petition has been rejected on its merits at least once before. 1 (DHB) (S.D. Cal. Nov. 13, 2014), ECF No. 26 (dismissing action for failure to prosecute); 2 Order Dismissing Appeal, In re Bauman, No. 17-CV-271-BAS-MDD (S.D. Cal. 3 Aug. 2, 2017), ECF No. 10 (dismissing for lack of prosecution and failure to comply with 4 rules of procedure and prior court orders); Order Denying Renewed Motion to Proceed IFP 5 and Dismissing Appeal Without Prejudice, In re Bauman, 24-CV-485 JLS (BLM) 6 (S.D. Cal. April 8, 2024), ECF No. 9 (dismissing appeal for failure to pay filing fee or file 7 timely motion to proceed IFP). 8 The Court therefore takes this opportunity to remind Petitioner of the potential 9 consequences of vexatious litigation, about which Petitioner was cautioned by former 10 Chief Judge Gonzalez over a decade ago: 11 Appellants’ voluminous motion practice in this matter, both before the bankruptcy court and on appeal, has approached 12 vexatiousness. And the Court is well aware of Appellant Marin’s 13 “extensive history of frivolous litigation.” Accordingly[,] 14 Appellants are hereby cautioned that unchecked, frivolous 15 motion practice may result in a vexatious litigant order.

16 In re Bauman,

, at *1 n.1 (quoting Marin v. Escondido Care Ctr., 17

, at *2 (S.D. Cal. Nov.7, 2012)). The Court echoes that warning here 18 and advises Petitioner that courts can enjoin litigants “with abusive and lengthy histories 19 of litigation” from “filing further actions or papers unless he . . . first meets certain 20 requirements, such as obtaining leave of the court.” Weissman v. Quail Lodge, Inc., 21

(9th Cir. 1999). 22 / / / 23 / / / 24 / / / 25 / / / 26 27 28 (rejecting argument that former Chief Judge Gonzalez’s 2013 decision provided grounds for reversing 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS Petitioner’s IFP Motion (ECF No. 2) 3 |}and DENIES the Petition WITHOUT LEAVE TO AMEND. As this concludes the 4 || litigation in this matter, the Clerk of the Court SHALL CLOSE the file. 5 IT IS SO ORDERED. 6 ||Dated: June 11, 2024 psi L. Lo meeaitie- 7 on. Janis L. Sammartino 3 United States District Judge

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