Franklin v. Kramer
Filing
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ORDER (1) DENYING WITHOUT PREJUDICE Plaintiff's Application to Proceed In Forma Pauperis and (2) DISMISSING WITHOUT PREJUDICE His Complaint. Mr. Franklin may file a First Amended Complaint within 30 days from the date of this order, and he also may file another IFP application as well. Signed by Judge Laurel Beeler on 1/8/2013. (lblc2, COURT STAFF) (Filed on 1/8/2013)
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UNITED STATES DISTRICT COURT
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Northern District of California
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San Francisco Division
TOM FRANKLIN,
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For the Northern District of California
UNITED STATES DISTRICT COURT
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No. C 12-06335 LB
Plaintiff,
v.
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PHILIP KRAMER,
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Defendant.
_____________________________________/
ORDER (1) DENYING WITHOUT
PREJUDICE PLAINTIFF’S
APPLICATION TO PROCEED IN
FORMA PAUPERIS AND (2)
DISMISSING WITHOUT PREJUDICE
HIS COMPLAINT
[Re: ECF Nos. 1, 3]
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INTRODUCTION
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On December 13, 2012, plaintiff Tom Franklin filed a complaint and an application to proceed in
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forma pauperis. Complaint, ECF No. 1; IFP Application, ECF No. 3.1 Mr. Franklin consented to
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the undersigned’s jurisdiction on January 4, 2013. Consent (Plaintiff), ECF No. 8. For the reasons
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stated below, the court DENIES WITHOUT PREJUDICE Mr. Franklin’s application to proceed
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in forma pauperis and DISMISSES WITHOUT PREJUDICE his complaint.2
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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
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Because an unserved defendant is not a party under 28 U.S.C. § 636(c), and because Mr.
Franklin has consented to the undersigned’s jurisdiction, the court may rule on Mr. Franklin’s IFP
application and may dismiss his complaint. See Ornelas v. De Frantz, C 00-1067 JCS, 2000 WL
973684, at *2 n.2 (N.D. Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th Cir.
1995)); cf. United States v. Real Property, 135 F. 3d 1312, 1316 (9th Cir. 1997) (holding that the
consent of an individual who was not a party was not a precondition to the magistrate judge's
C 12-06335 LB
ORDER
ANALYSIS
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I. IFP APPLICATION
Pursuant to 28 U.S.C. § 1915, a district court may authorize the commencement of a civil action
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in forma pauperis if it is satisfied that the would-be plaintiff cannot pay the filing fees necessary to
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pursue the action. 28 U.S.C. § 1915(a)(1). Here, the IFP application that Mr. Franklin submitted is
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incomplete. For example, Mr. Franklin fails to tell the court how much he contributes to the support
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of his spouse or dependants (Question 4), whether he owns or is buying a home (Question 5),
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whether he has a bank account or owns any cash of other assets (Question 7), or what his monthly
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expenses and debts are (Questions 8 and 9). He also does not provide his spouse’s income
Lastly, Mr. Franklin does not state whether his complaint raises claims that have been presented in
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For the Northern District of California
information (Question 3), and the amount he provided for his own income (Question 2) is illegible.
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UNITED STATES DISTRICT COURT
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other lawsuits (Question 10). Without this information, the court is unable to determine whether Mr.
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Franklin is able to pay the filing fee. That said, the court also cannot at this time say that he can pay
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it, either. Accordingly, the court DENIES WITHOUT PREJUDICE Mr. Franklin’s application to
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proceed in forma pauperis.
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B. SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
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Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any person
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proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua
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sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to state a claim
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upon which relief may be granted, or seeks monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez
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v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates that the
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court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before
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directing that the complaint be served by the United States Marshal pursuant to Federal Rule of Civil
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Procedure (“Rule”) 4(c)(2). Lopez, 203 F.3d at 1127; see also Barren v. Harrington, 152 F.3d 1193,
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1194 (9th Cir. 1998) (noting that the language of § 1915(e) (2)(B)(ii) parallels the language of
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jurisdiction).
C 12-06335 LB
ORDER
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Federal Rule of Civil Procedure (Rule) 12(b)(6).”). As the United States Supreme Court has
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explained, “[the in forma pauperis statute] is designed largely to discourage the filing of, and waste
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of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate
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because of the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327–28 (1989).
and failure to state a claim under Rule 12(b)(6) are distinct concepts. A complaint is “frivolous”
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where it lacks an arguable basis either in law or in fact. Id. at 325 (definition of “frivolous . . .
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embraces not only the arguable legal conclusion, but also the fanciful factual allegation”). When
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determining whether to dismiss a complaint as “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(i), the
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court has “‘the unusual power to pierce the veil of the complaint’s factual allegations,’” meaning
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that the Court “is not bound, as it usually is when making a determination based solely on the
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For the Northern District of California
“Frivolousness” within the meaning of the in forma pauperis standard of 28 U.S.C. § 1915(d)
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UNITED STATES DISTRICT COURT
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pleadings, to accept without question the truth of the plaintiff's allegations.” Denton v. Hernandez,
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504 U.S. 25, 32 (1992) (quoting Nietzke, 490 U.S. at 327). Further, the Ninth Circuit has expressly
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held that frivolous litigation “is not limited to cases in which a legal claim is entirely without merit .
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. . . [A] person with a measured legitimate claim may cross the line into frivolous litigation by
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asserting facts that are grossly exaggerated or totally false.” Molski v. Evergreen Dynasty Corp.,
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500 F.3d 1047, 1060–61 (9th Cir. 2007).
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The court may also dismiss a complaint sua sponte under Rule 12(b)(6). Sparling v. Hoffman
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Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988). Under Rule 12(b)(6), a district court must dismiss a
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complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a
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complaint include a “short and plain statement” showing the plaintiff is entitled to relief. “To
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survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
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state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
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1949 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007). The complaint need not contain detailed factual allegations, but the plaintiff must
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“provide the ‘grounds’ of his ‘entitle[ment]’ to relief,” which “requires more than labels and
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conclusions,” and merely “a formulaic recitation of the elements of a cause of action” is insufficient.
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Iqbal, 129 S.Ct. at 1949; see also Twombly, 550 U.S. at 555.
C 12-06335 LB
ORDER
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In determining whether to dismiss a complaint under 12(b)(6), the Court is ordinarily limited to
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the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.
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2002). The factual allegations pled in the complaint must be taken as true and reasonable inferences
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drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d
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336, 337–38 (9th Cir. 1996). However, the Court cannot assume that “the [plaintiff] can prove facts
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which [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of
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Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that
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are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v.
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Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citation omitted).
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When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that a
district court should grant leave to amend even if no request to amend the pleading was made, unless
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For the Northern District of California
UNITED STATES DISTRICT COURT
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it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez,
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203 F.3d at 1130.
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Here, Mr. Franklin has filed a “complaint based upon personal injury,” Complaint, ECF No. 1 at
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1, but it does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is
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plausible on its face,” Iqbal, 129 S.Ct. at 1949. For one, it is unclear who he has sued. The name
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“Philip Kramer” is the only defendant named in the caption of his complaint (and in the caption of
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IFP application), but “Philip Kramer” appears nowhere else at all in the complaint. See generally
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Complaint, ECF No. 1. This is confusing because the fourth paragraph of his complaint states:
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“Defendant is Tarrant County Appraisal Board is a conglomerate and a subsidiary and their address
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is: Calabasas Road Suite 2010 Calabasas, California.” Id. at 1. The remainder of his complaint,
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which consists of only a few sentences, refers to “Defendant” and does not specify who this
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“Defendant” is.
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But even if the Defendant was clear, the allegations are clearly insufficient. In paragraph 1, Mr.
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Franklin alleges that “[t]his is a civil action seeking damages against the Defendant for committing
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legal fraud and discrimination.” Id. In paragraph 2, he alleges that “[t]he court has jurisdiction
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[over] severe violations of discrim[in]ation and legal fraud.” Id. Paragraphs 3 and 4 contain
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descriptions of Plaintiff (Mr. Franklin) and Defendant (Tarrant County Appraisal Board). Id. In
C 12-06335 LB
ORDER
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paragraph 5, which is “Count Number 1,” Mr. Franklin alleges that “[t]he Defendant in an arbitrary
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and capricious way have continue [sic] to d[e]fraud the Plaintiff.” Id. at 2. In paragraph 6, which is
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“Count Number 2,” he alleges that “[t]he Defendant is in serious violation[] of state and federal laws
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[and] are violating []state and federal fraud laws concernin[g] housing.” Id. This is the totality of
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Mr. Franklin’s allegations. He clearly has not “provide[d] the ‘grounds’ of his ‘entitle[ment]’ to
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relief,” as he is required to do. Iqbal, 129 S.Ct. at 1949. Still, given the lack of allegations, the court
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cannot say that he cannot successfully amend his complaint to do so. Accordingly, the court
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DISMISSES WITHOUT PREJUDICE Mr. Franklin’s complaint. He may file a First Amended
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Complaint within 30 days from the date of this order.
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CONCLUSION
Based on the foregoing, the court DENIES WITHOUT PREJUDICE Mr. Franklin’s IFP
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For the Northern District of California
UNITED STATES DISTRICT COURT
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Application and DISMISSES WITHOUT PREJUDICE his complaint. Mr. Franklin may file a
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First Amended Complaint within 30 days from the date of this order, and he may file another IFP
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application as well.
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IT IS SO ORDERED.
Dated: January 8, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge
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C 12-06335 LB
ORDER
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