Mehmood v. Sarani

Filing 13

AMENDED 12 ORDER signed by Magistrate Judge Allison Claire on 9/27/17 ORDERING that Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected and paid in accordance with this court's order to the Warden of the Glades County Detention Center filed concurrently herewith; Service is appropriate for defendant: Tabassum Sarani; the Clerk of the Court shall send plaintiff one USM-285 form, one summons, a copy of the complaint filed 8/28/2017 8, and an instruction sheet; within 30 days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents, and submit the following documents to the court. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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YASIR MEHMOOD,

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No. 2:17-cv-0970 KJM AC PS

Plaintiff,
v.

AMENDED ORDER

TABASSUM SARANI,
Defendant.

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Plaintiff is proceeding in this action pro se and in forma pauperis. Although plaintiff is

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presently incarcerated, this action does not challenge his conditions of confinement. This

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proceeding was accordingly referred to this court by E.D. Cal. R. (“Local Rule”) 302(c)(21).

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On August 16, 2017, the court dismissed plaintiff’s complaint at the screening stage, but

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granted him leave to amend. ECF No. 7. Plaintiff has now filed his first amended complaint

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(“Complaint”). ECF No. 8.

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I. SCREENING STANDARDS
The federal IFP statute requires federal courts to dismiss a case if the action is legally

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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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Plaintiff must assist the court in determining whether or not the complaint is frivolous, by drafting

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the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”).
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Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain

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statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this court,

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rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled to

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relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief sought.

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Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. Fed. R.

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Civ. P. 8(d)(1).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von

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Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert.

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denied, 564 U.S. 1037 (2011).

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The court applies the same rules of construction in determining whether the complaint

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states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court

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must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must

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construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a

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less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520

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(1972). However, the court need not accept as true conclusory allegations, unreasonable

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inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

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624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice

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to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009). To state a claim on which relief may be granted, the plaintiff must

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allege enough facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

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570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 556 U.S. at 678.

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A pro se litigant is entitled to notice of the deficiencies in the complaint and an
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opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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II. THE COMPLAINT

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The complaint is brought under the Immigration and Naturalization Act, 8 U.S.C. §

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1183a. ECF No. 8 at 8. This statute is asserted as the basis for federal question jurisdiction. Id.

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The complaint alleges a breach of the “I-864 Affidavit of Support.” Id. at 10. Plaintiff alleges

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that defendant “did not honor [her] financial obligation as per i-864 affidavit from 8/17/2009 thru

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9/21/2010,” “4/3/2012 thru 2/28/2013,” and “3/1/2013 until 8/21/2017.” Id. For screening

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purposes, the complaint appears to state a cognizable claim against defendant for relief under 8

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U.S.C. § 1183a(a)(1)(B).1 If the allegations of the complaint are proven, plaintiff has a

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reasonable opportunity to prevail on the merits of this action.

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III. CONCLUSION

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Warden of the Glades County Detention Center filed concurrently herewith.

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2. Service is appropriate for the following defendant: Tabassum Sarani.

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3. The Clerk of the Court shall send plaintiff one USM-285 form for each defendant, one

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summons, a copy of the complaint filed August 28, 2017 (ECF No. 8), and an instruction sheet.

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4. Within 30 days from the date of this order, plaintiff shall complete the attached Notice

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of Submission of Documents, and submit the following documents to the court, for each

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defendant listed in number 3, above:

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a. The completed Notice of Submission of Documents;

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An affidavit of support filed on behalf of an immigrant pursuant to the statute is enforceable as
a contract. 8 U.S.C. § 1183a(a)(1)(B). Section 1183a creates a private right of action by which a
sponsored immigrant may enforce an affidavit of support. 8 U.S.C. § 1183a(e) (“An action to
enforce an affidavit of support . . . may be brought against the sponsor in any appropriate court by
a sponsored alien, with respect to financial support.”).
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b. One completed USM-285 form;

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c. One completed summons; and

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d. One copy of the endorsed complaint.

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5. Plaintiff need not attempt service on defendant and need not request waiver of service.

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Upon receipt of the above-described documents, the court will direct the United States Marshal to

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serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.

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6. Failure to comply with this order may result in a recommendation that this action be
dismissed for lack of prosecution and failure to comply with a court order.

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IT IS SO ORDERED.

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DATED: September 27, 2017

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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YASIR MEHMOOD,

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No. 2:17-cv-0970 KJM AC PS

Plaintiff,
v.

ORDER

TABASSUM SARANI,

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Defendant.

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Plaintiff submits the following documents in compliance with the court's order filed
_____________________:

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completed summons forms

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completed USM-285 forms

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copies of the complaint

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consent forms

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copy of service order

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____________________________________
Date

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Plaintiff

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