Mellens v. California Health and Human Services Agency

Filing 8

ORDER by Judge Maria-Elena James dismissing complaint without prejudice; transferring case to Central District of California; denying without prejudice 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge Maria-Elena James on 8/20/2009. (mejlc1, COURT STAFF) (Filed on 8/20/2009)

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For the Northern District of California

UNITED STATES DISTRICT COURT Northern District of California
MICHELLE MELLEMS, v. Plaintiff(s), No. C 09-03429 MEJ ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AND DISMISSING ACTION

CA HEALTH AND HUMAN SERVICES, Defendant(s). _____________________________________/

Plaintiff filed this action claiming a denial of her "14th Amendment US Constitutional Rights" and seeks to proceed in forma pauperis. The district court may deny in forma pauperis status and dismiss a complaint sua sponte if the complaint is frivolous, or fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B). A complaint is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989) (found to be superseded on other grounds by reason of adoption of section 1915(e), which makes dismissal for failure to state a claim mandatory); see, e.g., Lopez v. G.A.Smith, 203 F.3d 1122, 1126 (9th Cir. 2000); Cruz v. Gomez, I/O, 202 F.3d 593, 596 (2d Cir. 2000)). Furthermore, where the complaint alleges facts that are "clearly baseless", "fanciful", or "delusional" it may be dismissed as frivolous. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733 (1992) (also found superseded in that dismissal was within discretion of district court under section 1915(d) and now, under section 1915(e)(2) dismissal is mandatory, see Cruz v. Gomez, 202 F.3d at 596. Here, Plaintiff's one-paragraph complaint vaguely states that the defendant failed to grant her a hearing and failed to provide her with food stamps. She seeks $1,000,000. This is all the court can discern from her garbled complaint. This court cannot determine whether Plaintiff has a claim or what it is or whether her claim is frivolous or wholly without merit. If the pro se plaintiff can cure the factual allegations in order to state a claim, the court may give him leave to do so. However, if repleading cannot cure the deficiencies, the court may dismiss without leave to amend and even

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For the Northern District of California

dismiss with prejudice. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). Accordingly, the complaint is DISMISSED WITH LEAVE TO FILE AN AMENDED COMPLAINT, at which time in forma pauperis may be considered if Plaintiff states what appears to be claims upon which relief may be granted. Furthermore, while the court dismisses this complaint with leave to amend, it is also clear that this action should not be venued in this court. Plaintiff's residence is not alleged in the complaint; from the papers she has submitted, including the caption of the complaint, it appears that she lives in Rancho Cucamonga, California. The name of the city of her residence is abbreviated and somewhat indecipherable; however, her zip code, which appears on all of her papers, is 91730, which the court takes judicial notice is the zip code for Rancho Cucamonga. The address she gives for the defendant is in Sacramento, California. Rancho Cucamonga is in the Central District and Sacramento is in the Eastern District. Neither Plaintiff nor Defendant nor the acts of which she complains occurred in the Northern District, and there appears to be no reason for this action to be in this District. Therefore, this action is TRANSFERRED pursuant to 28 U.S.C. 1404(a) to the United States District Court for the Central District of California. If Plaintiff amends her complaint, she shall do so within sixty (60) days of the date of this order and file it in the Central District, Eastern Division with the case number assigned by that court.1 The Clerk of Court shall transfer this action and the file forthwith to the Clerk of Court for the Central District, Eastern Division. IT IS SO ORDERED.

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Dated: August 20, 2009

_______________________________ Maria-Elena James Chief United States Magistrate Judge

The Office of the Clerk of Court for the Eastern Division is located in Riverside, California. Plaintiff is referred to the website of the United States District Court for the Central District where she can obtain the address in Riverside and other necessary information. The website address is: www.cacd.uscourts.gov 2

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For the Northern District of California

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MICHELLE MELLEMS, Plaintiff, v. CA HEALTH AND HUMAN SERVICES et al, Defendant. /

Case Number: CV09-03429 MEJ CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 20, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

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Michelle Mellens 9600 Edelweiss Rancho Cucamonga, CA 91730 Dated: August 20, 2009 Richard W. Wieking, Clerk By: Brenda Tolbert, Deputy Clerk

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