Ross v. Moss

Filing 13

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT. Signed by Judge Wayne D. Brazil on 10/30/2008. (Attachments: # 1 Certificate of Services)(wdblc1, COURT STAFF) (Filed on 11/3/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER, page 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) Plaintiff, ) ) v. ) ) DENISE M. MOSS, ) ) Defendants. _______________________________ ) LEONARD D. ROSS, Case No.: C 08-4554 WDB ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT On September 30, 2008, Plaintiff filed a Complaint along with an Application to Proceed in Forma Pauperis. Plaintiff also filed a Consent to Proceed before a United States Magistrate Judge. Having reviewed Plaintiff's Complaint and In Forma Pauperis Application, IT IS HEREBY ORDERED that the Application be denied and the Complaint dismissed. The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342-343 (1948). To this end, 1915(a) allows a litigant to commence a civil action in federal 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). Preliminarily, however, under 28 U.S.C. 1915(e), where a plaintiff seeks to proceed in forma pauperis, the Court must dismiss the complaint if it determines that the complaint is frivolous or malicious, or that the plaintiff has failed to state a claim upon which relief can be granted. 28 U.S.C. 1915(e)(2)(B)(i) and (ii). Here, the document that we construe as Plaintiff's Complaint falls directly within the category of pleadings identified in 1915(e). It is unclear exactly what claims Plaintiff is making in his Complaint. The Complaint itself consists only of a cover sheet and several documents from the Superior Court of California in what appears to be an ongoing family law matter between Plaintiff and Ms. Denise M. Moss. Mr. Ross sets forth no allegations about any causes of action he intends to bring before this federal court, and the Complaint he has filed cannot fairly be read to state any claim under the Federal Rules of Civil Procedure. There is no indication that Plaintiff can cure these deficiencies. Accordingly, pursuant to 28 U.S.C. 1915(e), Plaintiff's Complaint is DISMISSED and his application to proceed in forma pauperis is DENIED.1 IT IS SO ORDERED. Dated: 10/30/08 ____________________________ WAYNE D. BRAZIL. United States Magistrate Judge A Magistrate Judge may not deny an application to proceed in forma pauperis or issue an Order dismissing a case without the consent of plaintiff. See Tripati v. Rison, 847 F.2d 548 (9th Cir. 1988). Plaintiff here has filed a consent to Magistrate Judge jurisdiction and, thus, this dispositive Order is permissible. 1 ORDER, page 2

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