1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EMANUEL DUNN, JR, Case No.: 3:25-cv-0620-JLS-VET CDCR #BA-7000, 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS AND (2) DISMISSING 14 COMPLAINT FOR FAILURE TO

15 STATE A CLAIM SUPERIOR COURT OF SAN DIEGO 16 COUNTY, (ECF Nos. 1, 4) 17 Defendant. 18 19 20 I. INTRODUCTION 21 On March 13, 2025, Plaintiff Emanuel Dunn, Jr. (“Plaintiff”), a state inmate 22 proceeding pro se, filed a civil rights complaint pursuant to

, along with 23 a motion to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. On May 15, 2025, the 24 Court denied Plaintiff’s IFP motion because it lacked the required support and dismissed 25 the action without prejudice, allowing his case to be reopened by either paying the filing 26 fee or filing a properly supported IFP motion. ECF No. 3. On June 16, 2025, Plaintiff 27 filed a renewed IFP motion (“Mot.,” ECF No. 4). For the reasons discussed below, the 28 Court grants Plaintiff’s IFP motion and dismisses the complaint without prejudice. 1 II. IFP MOTION 2 As discussed in this Court’s previous order, parties instituting any civil action, suit 3 or proceeding in a district court of the United States must generally pay a filing fee of 4 $405.1 See

(a). The action may proceed despite a failure to pay the entire 5 fee at filing only if the court grants the plaintiff leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes,

(9th Cir. 2007); cf. Hymas v. 7 U.S. Dep’t of the Interior,

(9th Cir. 2023) (“[W]here [an] IFP application 8 is denied altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] [a]re 9 paid.”). 10 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 11 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 12 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 13 the filing of the complaint.”

(a)(1), (2); Andrews v. King,

, 14 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when 15 funds exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the 16 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 17 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 18 payments of 20 percent of the preceding month’s income credited to the prisoner’s 19 account.” Hymas,

(quoting

(b)(1)–(2)). In short, while 20 prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront, 21 they remain obligated to pay the full amount due in monthly payments. See Bruce v. 22 Samuels,

(2016). 23 In support of his renewed IFP Motion, Plaintiff has provided a certified copy of his 24 prison trust account statement. See ECF No. 4 at 5–6. During the six months prior to filing 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $55. See

(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to persons 28 1 suit, Plaintiff had an average monthly balance of $27.71 and average monthly deposits of 2 $20.83. See ECF No. 4 at 6. His current available account balance is $0.00. Id. 3 Accordingly, the Court GRANTS Plaintiff’s IFP motion. Because Plaintiff has no funds 4 on account, the Court assesses no initial partial filing fee, and directs the agency having 5 custody of Plaintiff, to collect and forward to the Clerk of Court the $350 balance of the 6 filing fee required by

and forward it to the Clerk of the Court pursuant to 7 the installment payment provisions set forth in

(b)(1). 8 III. SCREENING PURSUANT TO

(e)(2)(B) & 1915A(b) 9 A. Legal Standards 10 Pursuant to

(e)(2)(B) and 1915A(b), the Court must screen a 11 prisoner’s IFP complaint and dismiss it to the extent that it is frivolous, malicious, fails to 12 state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203

, 1126–27 (9th Cir. 2000); Rhodes v. Robinson,

(9th Cir. 14 2010). “The standard for determining whether Plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a complaint to “contain sufficient 18 factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 19

(2009) (internal quotation marks omitted). While detailed factual 20 allegations are not required, “[t]hreadbare recitals of the elements of a cause of action, 21 supported by mere conclusory statements, do not suffice” to state a claim.

The “mere 22 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 23 accusation[s]” fall short of meeting this plausibility standard.

24 B. Plaintiff’s Allegations 25 The allegations in Plaintiff’s complaint are sparse. Plaintiff states that in 2016, he 26 was convicted of second-degree murder in San Diego County Superior Court and sentenced 27 to 35 years-to-life in prison. ECF No. 1 at 3. On July 8, 2024, he filed a “motion for DNA 28 testing” pursuant to California Penal Code section 1405 in the San Diego County Superior 1 Court.

Having not received a response from the superior court, Plaintiff sent a letter to 2 Superior Court Judge O’Neil on September 20, 2024, “asking for a status update” on the 3 motion.

Again, Plaintiff did not receive a response.

4 On October 8, 2024, Plaintiff filed a petition for writ of mandate with the California 5 Court of Appeal in which he asked the appellate court to order the superior court to grant 6 his request for DNA testing.

The appellate court denied the writ on November 15, 7 2024, “without giving [a] reason.”

8 C. Discussion 9 In his sole claim, Plaintiff alleges the San Diego County Superior Court violated his 10 due process rights when it failed to grant his request for DNA testing.

Specifically, he 11 states he is “entitled to DNA testing” under California law.

He seeks an order from 12 this Court “grant[ing] DNA testing under [California] Penal Code § 1405.” Id. at 7. 13 First, the Supreme Court has held there is no free-standing federal constitutional 14 right to obtain post-conviction access to the state’s evidence for DNA testing. District 15 Attorney’s Office for the Third Jud. Dist. v. Osborne,

(2009) (rejecting 16 prisoner’s attempt to seek post-conviction DNA testing that might prove his innocence). 17 Moreover, under the Rooker–Feldman doctrine, federal district courts are without 18 jurisdiction to hear direct appeals from the judgments of state courts. Noel v. Hall, 341

(9th Cir. 2003). And here, because Plaintiff is seeking review of “the 20 particular outcome” of state court proceedings, specifically the denial of his motion for 21 DNA testing under California Penal Code § 1405, this Court is without subject matter 22 jurisdiction to review his claim. See Cooper v. Ramos,

, 70–81 (9th Cir. 2012) 23 (citing Skinner v. Switzer,

, 532 (2011)) (“[A] state-court decision is not 24 reviewable by lower federal courts, but a statute or rule governing the decision may be 25 challenged in a federal action.”); see also Alvarez v. Att’y Gen. for Fla.,

, 26 1264 (11th Cir. 2012) (holding Rooker-Feldman barred claim that state courts violated due 27 process by misapplying state DNA access procedures). 28 Finally, while the Supreme Court has held that the Rooker-Feldman doctrine does 1 not bar a claim challenging the constitutionality of a state’s statute regarding DNA testing, 2 Skinner, 562 U.S. at 532, Plaintiff makes no such challenge to California Penal Code § 3 1405. And the Complaint contains no allegations suggesting that the procedure set forth 4 under § 1405 is “fundamentally inadequate to vindicate the substantive rights provided.” 5 See Morrison v. Peterson,

, 1064–65 (9th Cir. 2015). Indeed, Plaintiff’s 6 allegations suggest he takes issue only with the state court’s application of § 1405, not the 7 statute itself. See ECF No. 1 at 3. Therefore, Plaintiff has not stated a due process claim. 8 See Gallegos v. Licalsi,

, at *5 (E.D. Cal. 2017) (concluding plaintiff’s 9 claim fell outside of the parameters of Skinner where he was clearly was not challenging 10 the constitutionality or adequacy of California Penal Code § 1405). 11 For the above reasons, the Court finds Plaintiff has failed to state a claim and as 12 such, the Complaint is DISMISSED. See

(e)(2) and 1915A(b). 13 D. Amendment Would Be Futile 14 The Court would ordinarily grant Plaintiff leave to amend, given his pro se status. 15 However, because it is evident his claim is barred under the Rooker-Feldman doctrine, the 16 Court declines to grant leave to amend here because it would be futile. See United States 17 ex rel. Insoon Lee v. SmithKline Beecham, Inc.,

(9th Cir. 2001) 18 (“Futility of amendment can, by itself, justify the denial of . . . leave to amend.”); Cooper, 19

(concluding district court did not err in declining to grant plaintiff leave to 20 amend as futile because plaintiff’s only challenge regarding DNA testing and California 21 Penal Code § 1405 was “the fact-specific application of the statute to his own case”). 22

23 24 2 A person claiming a procedural due process violation with regard to post-conviction DNA testing must show: (1) he has a protected liberty interest created by the laws of his state “to prove his 25 innocence even after a fair trial has proved otherwise” and (2) the state’s procedure for obtaining 26 DNA evidence is constitutionally inadequate because it “‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ or 27 ‘transgresses any recognized principle of fundamental fairness in operation.’” Osborne,

, 69 (quoting Medina v. California,

(1992)). 28 1 IV. CONCLUSION AND ORDER 2 Accordingly, the Court: 3 1. GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 4) 4 2. DIRECTS the Watch Commander at the George Bailey Detention Facility, 5 ||to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by 6 || collecting monthly payments from the account in an amount equal to twenty percent (20%) 7 || of the preceding month’s income and forward payments to the Clerk of the Court each time 8 || the amount in the account exceeds $10 in accordance with

(b)(2). 9 3. DIRECTS the Clerk of the Court to serve a copy of this Order on the Facility 10 || Commander, George Bailey Detention Facility, 446 Alta Rd. Ste. 5300, San Diego, 11 || California, 92158. 12 4. DISMISSES this civil action in its entirety for failure to state a claim upon 13 ||pursuant to

(e)(2)(B)G) and 1915A(b)(1) WITHOUT LEAVE TO 14 || AMEND. 15 5. DIRECTS the Clerk of the Court to enter judgment and close the file. 16 IT IS SO ORDERED. 17 Dated: September 19, 2025 18 id tt f Lire 19 on. Janis L. Sammartino 20 United States District Judge 21 22 23 24 25 26 27 28