Moye v. Big Nates Barbeque et al

Filing 16

ORDER: Plaintiff shall file first amended complaint no later than 1/11/2010. Signed by Judge Elizabeth D. Laporte on 12/16/09. (Attachments: # 1 October 22, 2009 Order, # 2 Certificate of service)(lmh, COURT STAFF) (Filed on 12/16/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is one of ten cases filed by Plaintiff on August 25, 2009 (C-09-3892 WHA, C-09-3893 MHP, C-09-3895 WHA, C-09-3896 WHA, C-09-3897 WHA, C-09-3898 EDL, C-09-3899 WHA, C-09-3900 WHA, C-09-3901 JCS, C-09-3902 WHA). On October 6, 2009, Judge William Alsup related six of these cases to C-09-3892 WHA, and issued an Order to Show Cause as to why the cases should not be dismissed for failure to state a claim and why Plaintiff should not be declared a vexatious litigant and barred from filing further actions in the Northern District of California without pre-filing review. See Malinka Tacuma Wade Moye v. City & County of San Francisco, C-09-3892 WHA (Docket No. 11, 12). Plaintiff did not respond to the Order to Show Cause, and on October 16, 2009, Judge Alsup gave him another opportunity to do so. See Malinka Tacuma Wade Moye v. City & County of San Francisco, C-09-3892 WHA (Docket No. 13). Plaintiff has filed at least nine other actions in this district since April 2008 (C-08-2051 PJH, C-08-2053 WHA, C-08-2054 JL, C-08-2055 MEJ, C-08-2056 PJH, C-08-2057 VRW, C-08-2125 WHA, C-08-2124 SBA, C-08-2126 SBA).
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

MALINKA TACUMA WADE MOYE, Plaintiff, v. BIG NATES BARBEQUE, Defendant. /

No. C-09-03898 EDL ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT

Plaintiff Malinka Tacuma Wade Moye filed his complaint and Application to Proceed In Forma Pauperis on August 25, 2009.1 Also on that day, Plaintiff consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).2 For the reasons set forth below, the Court grants Plaintiff's application to proceed in forma pauperis and dismisses Plaintiffs' complaint without

To the extent that this order is dispositive, the Court does not require the consent of Defendants because Defendants have not been served and therefore are not parties under the meaning of 28 U.S.C. § 636(c). See Ornelas v. De Frantz, 2000 WL 973684, *2, n.2 (N.D. Cal. 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (magistrate judge had jurisdiction to dismiss prisoner's civil rights action without consent of the defendants because the defendants had not been served yet and therefore were not parties)).
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prejudice. Under 28 U.S.C. § 1915(a), "[a]ny court of the United States may authorize the commencement . . . of any suit . . . without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor." In reviewing an application to proceed in forma pauperis, the court may dismiss a case sua sponte if the court determines that the party applying for in forma pauperis status has filed a frivolous action. 28 U.S.C. § 1915(e)(2); Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). Under 28 U.S.C. § 1915, a frivolous claim is one that lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Moreover, according to Neitze, a court may dismiss an in forma pauperis complaint sua sponte under 28 U.S.C. § 1915(d) when the claim is "fantastic or delusional. . . ." Neitze, 490 U.S. at 328. Dismissal on these grounds is often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints. Id. at 324. Plaintiff's Application to Proceed In Forma Pauperis adequately alleges Plaintiff's poverty. Plaintiff states that he is not employed, that he receives $543.00 per month in social security benefit payments, that he contributes $123.00 per month for the care of his minor child and that he has $35 in the bank. Although Plaintiff states that he owns a home that is not encumbered by a mortgage with an estimated market value of "$2.1," which the Court presumes to mean $2.1 million, his monthly expenses exceed his income according to his Application. Therefore, Plaintiff's Application to Proceed In Forma Pauperis is granted. However, under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss an action that appears to be frivolous or fails to state a claim upon which relief may be granted. Here, both grounds are met. Plaintiff's complaint consists of a conclusory statement of the Court's jurisdiction and a one paragraph description of the facts that contains many incomplete sentences and is generally difficult to comprehend. Plaintiff appears to allege that Defendant Big Nate's Barbeque is responsible for a physical assault on Plaintiff. Plaintiff's complaint does not provide a basis for federal jurisdiction under 28 U.S.C. § 1331 or for diversity jurisdiction under 28 U.S.C. § 1332. To the extent that Plaintiff's claim arises under state law, he may seek to assert those claims in state 2

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court. Moreover, Plaintiff's complaint is too conclusory to state a cognizable claim under federal or state law against Defendant. In sum, Plaintiff's complaint fails to include a "short and plain statement of the claim showing that the pleader is entitled to relief" as required by Federal Rule of Civil Procedure 8(a)(2). Therefore, Plaintiff's complaint is dismissed. Because Plaintiff is proceeding pro se, the Court will give him an opportunity to amend his complaint to comply with the Federal Rules of Civil Procedure. Plaintiff is encouraged to obtain the Handbook for Litigants Without a Lawyer, which is available in the clerk's office at 450 Golden Gate Avenue, San Francisco, California, or on the Court's website (www.cand.uscourts.gov). Any amended complaint shall be filed no later than November 6, 2009. Failure to file an amended complaint by November 6, 2009 will result in dismissal of this case with prejudice. IT IS SO ORDERED. Dated: October 22, 2009 ELIZABETH D. LAPORTE United States Magistrate Judge

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