Ortiz v. Taylor Bean & Whitaker

Filing 4

ORDER Dismissing Complaint. Signed by Judge Hamilton on 1/31/2008. (pjhlc2, COURT STAFF) (Filed on 2/1/2008) (Additional attachment(s) added on 2/1/2008: # 1 Certificate of Service) (nah, COURT STAFF).

Ortiz v. Taylor Bean & Whitaker

Doc. 4

Case 3:08-cv-00312-PJH

Document 4

Filed 02/01/2008

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1 2 3 4 5 6 7 8 9 10 v. TAYLOR BEAN AND WHITAKER Defendant(s). _______________________________/ Before the court is plaintiff Ivonne Ortiz' application to proceed in forma pauperis and "Petition for Libel of Review of an Administrative Judgment," both of which were filed January 16, 2008. The Court may authorize a plaintiff to file an action in federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a). The in forma pauperis statute also provides that the Court shall dismiss the case if at any time the Court determines that the allegation of poverty is untrue, or that the action (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Here, plaintiff's application fails to establish a viable allegation of poverty, and the petition itself fails to state any claim upon which relief may be granted. First, in her IFP application, plaintiff states that she is employed by "Gymbori [sic]" and that her gross salary per month is "$2,800." She then goes on to state, however, that her past employment earned her "$28,000" per month. Furthermore, she states that she owns a home with an estimated market value of "$560,000" and a "$4200" mortgage, as well as a 2007 Honda with an outstanding loan in the amount of "$191,000," and that her monthly expenses equal IVONNE ORTIZ Plaintiff(s), No. C 08-0312 PJH ORDER DISMISSING COMPLAINT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

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Dockets.Justia.com

Case 3:08-cv-00312-PJH

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$840. These conflicting allegations make it impossible for the court to determine whether plaintiff warrants IFP status. On the one hand, a salary of $2800 gross per month, in view of $840 worth of monthly expenses, and a mortgage amount of $4,200, would indicate that plaintiff is sufficiently indebted so as to qualify for IFP status. On the other hand, ownership of a home worth $560,000 and a 2007 Honda vehicle counsel against any allegations of poverty. Regardless whether such discrepancies can ultimately be clarified further, however, plaintiff's complaint fails to state a claim. Plaintiff alleges, for example, that she is petitioning the court for a "Review of Foreign Judgment," without indicating the foreign judgment for which she seeks review. She also asserts that all parties are "U.S. Vessels and fit the legal definition of a U.S. Vessel," such that the "Public Vessels Act" applies, but never alleges any conduct allegedly falling under the Act. Similarly, she invokes the First Judiciary Act, Foreign Sovereign Immunity Act, Bills of Lading Act, and Admiralty Extension Act, without ever clearly defining the nature of any conduct or grievances that fall under any of these Acts. Finally, while plaintiff seeks relief in relation to an alleged "agreement/contract" and further seeks to have the court "enforce the Administrative findings in the perfected agreement," plaintiff fails to sufficiently identify the nature of the alleged agreement or any administrative decision. In sum, the court can discern no basis upon which relief may be granted to plaintiff. Accordingly, the instant complaint is hereby DISMISSED, pursuant to 28 U.S.C. § 1915(e)(2)(B), and plaintiff's corresponding application to proceed in forma pauperis is furthermore DENIED as moot. The dismissal is with prejudice. The clerk shall close the file. IT IS SO ORDERED. Dated: January 31, 2008 ______________________________ PHYLLIS J. HAMILTON United States District Judge

United States District Court

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For the Northern District of California

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

IVONNE ORTIZ, Plaintiff, v. TAYLOR BEAN AND WHITAKER et al, Defendant. /

Case Number: CV08-00312 PJH 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 February 1, 2008, 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.

Ivonne Ortiz 178 Leeward Court Vacaville, CA 95687 Dated: February 1, 2008 Richard W. Wieking, Clerk By: Nichole Heuerman, Deputy Clerk