Camacho v. San Luis, City of et al

Filing 6

ORDER that the complaint is dismissed (such dismissal is without prejudice to Plaintiff seeking to re-open CV 06-1462-PHX-FJM in a procedurally proper manner); and IT IS FURTHER ORDERED that Plaintiff's application for leave to proceed in forma pauperis (Doc. 2 ) is denied. Signed by Judge James A Teilborg on 9/7/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Pedro E. Camacho,
Plaintiff,

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vs.

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City of San Luis, Arizona; et al.,
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Defendants.
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No. CV 12-1853-PHX-JAT
ORDER

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Pending before the Court is Plaintiff’s request to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915.
Congress provided with respect to in forma pauperis cases that a district
court “shall dismiss the case at any time if the court determines” that the
“allegation of poverty is untrue” or that the “action or appeal” is “frivolous or
malicious,” “fails to state a claim on which relief may be granted,” or “seeks
monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2). While much of section 1915 outlines how prisoners can
file proceedings in forma pauperis, section 1915(e) applies to all in forma
pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir. 2000)(“section 1915(e) applies to all in forma
pauperis complaints”). “It is also clear that section 1915(e) not only permits
but requires a district court to dismiss an in forma pauperis complaint that fails
to state a claim.” Id. Therefore, this court must dismiss an in forma pauperis
complaint if it fails to state a claim or if it is frivolous or malicious.
Kennedy v. Andrews, 2005 WL 3358205, *2 (D. Ariz. 2005).

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Here, the only demand Plaintiff makes in his “complaint” is to reopen CV-06-1462-

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PHX-FJM. Plaintiff further moves in his “complaint” to have this case tranfered to Judge

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Martone.

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The Court finds that filing a new complaint is not the procedurally correct method to

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re-open a closed case. See Fed.R.Civ.Pro. 60(b). Thus, the complaint in this case fails to

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state a claim. Accordingly, the Court will dismiss this case.

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Based on the foregoing, and pursuant to 28 U.S.C. § 1915,

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IT IS ORDERED that the complaint is dismissed (such dismissal is without prejudice

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to Plaintiff seeking to re-open CV 06-1462-PHX-FJM in a procedurally proper manner); and

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IT IS FURTHER ORDERED that Plaintiff’s application for leave to proceed in

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forma pauperis (Doc. 2) is denied.
DATED this 7th day of September, 2012.

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