Llanos v. Washington Mutual

Filing 4

ORDER by Judge Hamilton Dismissing Complaint and Denying 3 Motion for Leave to Proceed in Forma Pauperis (pjhlc2, COURT STAFF) (Filed on 2/1/2008) (Additional attachment(s) added on 2/5/2008: # 1 Certificate of Service) (nah, COURT STAFF).

Llanos v. Washington Mutual

Doc. 4

Case 3:08-cv-00552-PJH

Document 4

Filed 02/01/2008

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1 2 3 4 5 6 7 8 9 10 v. WASHINGTON MUTUAL, Defendant. _______________________________/ Before the court is plaintiff Julio V. Llanos' application to proceed in forma pauperis and "Petition for Libel of Review of an Administrative Judgment," both of which were filed January 25, 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 his IFP application, plaintiff states that he is employed by Synergy Companies, and that his gross salary per month is "$41,700," with a net monthly income of "$30,004.00." Plaintiff also indicates that he owns a home, and that he owns two vehicles which are not financed. Plaintiff's monthly debt payments total $310.00. It appears that plaintiff may have made a JULIO V. LLANOS, Plaintiff, No. C 08-0552 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-00552-PJH

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Filed 02/01/2008

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common mistake, and listed his yearly gross and monthly incomes, as opposed to his monthly income. Even so, however, plaintiff's allegations as a whole make it difficult to determine whether plaintiff warrants IFP status; a net salary of $2500 per month (based on a yearly net income of $30,004.00), in view of only $310.00 worth of debt payments per month, and the fact that plaintiff owns a home and two automobiles, counsel against a finding of poverty. Regardless whether plaintiff can sufficiently allege that his financial status warrants IFP treatment, however, plaintiff's complaint fails to state a claim. Plaintiff alleges, for example, that he is petitioning the court for a "Review of Foreign Judgment," without indicating the foreign judgment for which she seeks review. He 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: February 1, 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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Case 3:08-cv-00552-PJH

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JULIO V LLANOS, Plaintiff, v. WASHINGTON MUTUAL et al, Defendant. /

Case Number: CV08-00552 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 5, 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.

Julio Victor Llanos 175 Seville Street San Francisco, CA 94112 Dated: February 5, 2008 Richard W. Wieking, Clerk By: Nichole Heuerman, Deputy Clerk