Alfaro v. Riddick

Filing 3

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 9/26/12 DENYING 2 Motion to Proceed IFP; and RECOMMENDING that 1 Complaint be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIKAELLA CRISTINA ALFARO,
Plaintiff,

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vs.

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No. 2:12-cv-2336-MCE-JFM (PS)

JUNE RIDDICK,

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ORDER AND

Defendant.

FINDINGS & RECOMMENDATIONS
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Plaintiff is proceeding pro se. Plaintiff has filed an in forma pauperis affidavit in

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which she states that she is presently employed and that her gross wages are $5,400.00 per

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month. Plaintiff also receives $4568.00 from gifts or inheritance, $1108.00 for social security,

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and unspecified rent payments interest per month. Finally, plaintiff states that she has

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$250,000.00 in her checking or savings account.

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Pursuant to federal statute, a filing fee of $350.00 is required to commence a civil

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action in federal district court. 28 U.S.C. § 1914(a). The court may authorize the

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commencement of an action "without prepayment of fees and costs or security therefor, by a

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person who makes affidavit that he is unable to pay such costs or give security therefor." 28

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U.S.C. § 1915(a). The amount of plaintiff's earnings shows that plaintiff is able to pay the filing

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fee and costs. Thus, plaintiff has made an inadequate showing of indigency. See Alexander v.
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Carson Adult High Sch., 9 F.3d 1448 (9th Cir. 1993); California Men's Colony v. Rowland, 939

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F.2d 854, 858 (9th Cir. 1991); Stehouwer v. Hennessey, 841 F. Supp. 316, (N.D. Cal. 1994).
The federal in forma pauperis statute authorizes federal courts to dismiss a case if

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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be

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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in

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fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-

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28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless.

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Neitzke, 490 U.S. at 327.
A complaint, or portion thereof, should only be dismissed for failure to state a

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claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

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of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

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Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

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v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

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complaint under this standard, the court must accept as true the allegations of the complaint in

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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
In the operative complaint filed in this action, plaintiff apologizes for blowing

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cigarette smoke toward her landlord’s husband. This claim is patently frivolous. Because

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amendment would be futile, the court will recommend that this action be dismissed without leave

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to amend.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to proceed in
forma pauperis is denied; and
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IT IS HEREBY RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 26, 2012.

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alfa2336.ifp.den

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