1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT EMERT, Case No.: 24-cv-00671

12 Plaintiff, ORDER GRANTING IFP, 13 v. SCREENING COMPLAINT, DENYING MOTION FOR 14 SAN DIEGO BOARD OF MISCELLANEOUS RELIEF, & SUPERVISORS, COUNTY OF SAN 15 ORDERING MARSHAL SERVICE DIEGO, DAWN BALERIO DDA 16 ACTING IN HIS OFFICIAL CAPACITY, AND DAI LUIS PENA 17 ACTING IN HER OFFICIAL 18 CAPACITY, 19 Defendants. 20 21

22 On April 12, 2024, pro se Plaintiff Robert Emert filed a complaint alleging that 23 Defendants violated his constitutional rights and state law in conducting his arrest and 24 denying him bail. Along with his complaint, Plaintiff filed a motion for leave to proceed 25 in forma pauperis (“IFP”). Dkt. 2. On August 5, 2024, Plaintiff filed an amended motion 26 for IFP, Dkt. 3, and a motion for miscellaneous relief including consolidated expedited 27 review by a single three-judge panel, pre-discovery, an evidentiary hearing, and an early 28 case management conference, Dkt. 4. For the reasons set forth below, the Court grants 1 Plaintiff’s motion for IFP, permits his complaint to proceed, and denies his motions for 2 miscellaneous relief. 3 I. DISCUSSION 4 A. Motion to Proceed IFP 5 Plaintiff has not prepaid the civil filing fee and instead has requested to proceed IFP. 6 Dkts. 2, 3. A claimant instituting a case in a federal district court must pay a filing fee of 7 $405.

(a); Local Civ. R. 4.5. However, a district court may waive the 8 filing fee by granting the claimant leave to proceed IFP.

(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.

(a); see also Local Civ. R. 11 3.2. An affidavit is “sufficient where it alleges that the plaintiff cannot pay the court costs 12 and still afford the necessities of life.” Escobedo v. Applebees,

(9th 13 Cir. 2015) (citation omitted). “The granting or refusing of permission to proceed [IFP] is 14 a matter committed to the sound discretion of the district court.” Skelly v. U.S. Dep’t of 15 Educ., No. 19-1812,

, at *2 (S.D. Cal. Dec. 16, 2019) (quoting Smart v. 16 Heinze,

(9th Cir. 1965)). 17 In support of his IFP motion, Plaintiff has filed an affidavit explaining his financial 18 circumstances and inability to pay. Dkts. 2, 3. He indicates that he has no source of income 19 nor any assets and that he relies on his family to provide his housing and basic living 20 expenses.

Lastly, Plaintiff attests that he receives public benefits, including MediCal 21 and SNAP.

Accordingly, the Court finds that the affidavit has “sufficiently show[n] 22 that he lacks the financial resources to pay filing fees.” Dillard v. So, No. 12-2958, 2013

, at *1 (S.D. Cal. Sept. 11, 2013). Accordingly, the Court GRANTS 24 Plaintiff’s motion to proceed IFP pursuant to

(a). 25 B. Sua Sponte Screening Pursuant to

(e)(2)(B) 26 Because Plaintiff is granted leave to proceed IFP, his complaint must undergo a sua 27 sponte screening for dismissal. A complaint filed by any person proceeding IFP pursuant 28 to

(a) is subject to a mandatory and sua sponte review and dismissal by 1 the court to the extent it is frivolous, malicious, fails to state a claim upon which relief may 2 be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. 3 § 1915(e)(2)(B); Calhoun v. Stahl,

(9th Cir. 2001) (“[T]he provisions of 4

(e)(2)(B) are not limited to prisoners.”). After screening his complaint, 5 the Court finds that Plaintiff has met the low threshold requirement for pleading various 6 constitutional violations and related state law claims and thus, may proceed in this matter. 7 See Wilhelm v. Rotman,

(9th Cir. 2012) (establishing that a pro se 8 litigant need only satisfy a “low threshold” to “proceed past the screening stage”) (internal 9 citation and quotation marks omitted). 10 C. Other Motions 11 Plaintiff has also filed a motion for “consolidated expedited review by a single three- 12 judge panel, pre-discovery, evidentiary hearing, and early case management.” Dkt. 4. 13 However, these are all separate requests that the Court will address in turn. 14 1. Plaintiff wishes to consolidate this case with his other case, Emert v. Schuck et al., 15 24-cv-00002-AGS-AHG. However, this request is DENIED as moot given that this 16 other case has already been closed. 17 2. Plaintiff’s other requests are denied for lack of good cause. 18 II. CONCLUSION 19 For the reasons explained above, the Court GRANTS Plaintiff’s IFP motion [Dkts. 20 2, 3], PERMITS Plaintiff’s complaint to proceed, and DENIES Plaintiff’s motion for 21 miscellaneous relief [Dkt. 4]. 22 In addition, the Court: 23 1. DIRECTS the Clerk of the Court to issue a summons as to Plaintiff's Complaint 24 (ECF No. 1) upon Defendants and to forward it to Plaintiff along with a blank U.S. 25 Marshal Form 285 for the named Defendants. In addition, the Clerk will provide 26 Plaintiff with certified copies of this Order, his Complaint, and the summons 27 (together, the “IFP Package”) so that he may serve Defendants. Upon receipt of this 28 “IFP Package,” Plaintiff must complete the USM Form 285 as completely and l accurately as possible, include addresses where Defendants may be found and/or 2 subject to service pursuant to S.D. Cal. CivLR 4.1c., and return it to the United States 3 Marshal according to the instructions the Clerk provides. 4 2. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons upon 5 Defendants San Diego Board of Supervisors, County of San Diego, Dawn Balerio, 6 and Dai Luis as directed by Plaintiff on the USM Form 285s provided, and to file 7 executed waivers of personal service upon Defendants with the Clerk of Court as 8 soon as possible after its return. Should Defendants fail to return the U.S. Marshal’s 9 request for waiver of personal service within 90 days, the U.S. Marshal shall instead 10 file the completed Form USM 285 Process Receipt and Return with the Clerk of 11 Court, include the date the summons, Complaint and request for waiver was mailed 12 to Defendants, and indicate why service upon the party remains unexecuted. All 13 costs of that service will be advanced by the United States; however, if Defendants 14 are located within the United States and fails, without good cause, to sign and return 15 the waiver requested by the Marshal on Plaintiff's behalf, the Court will impose 16 upon Defendants any expenses later incurred in making personal service. See 28

(d); Fed. R. Civ. P. 4(c)(3). 18 3. ORDERS Defendants, once served, to reply to Plaintiff's Complaint, and any 19 subsequent pleading he may file in this matter in which they are named as parties, 20 within the time provided by the applicable provisions of Federal Rule of Civil 21 Procedure 12(a). 22 ISSO ORDERED. 23 24 || Dated: October 21, 2024 25 26 27 “Tinsook Ohta 28 United States District Judge