Grimes v. San Francisco Chief of Police et al

Filing 6

ORDER by Judge Claudia Wilken Denying 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge Claudia Wilken on 2/25/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 2/25/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JEROME L. GRIMES, 5 6 7 8 9 Plaintiff, v. SAN FRANCISCO CHIEF OF POLICE; SAN FRANCISCO POLICE DEPARTMENT; and ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, United States District Court For the Northern District of California ORDER DENYING PETITION TO PROCEED IN FORMA PAUPERIS (Docket No. 2) Defendants. 10 11 No. C 11-1815 CW ________________________________/ Plaintiff Jerome L. Grimes has applied to proceed in forma 12 pauperis.1 Having considered all of the papers filed by 13 Plaintiff, the Court DENIES the motion for in forma pauperis 14 status (Docket No. 2). 15 Pursuant to 28 U.S.C. § 1915, a district court may authorize 16 the commencement of a civil action in forma pauperis if the court 17 is satisfied that the would-be plaintiff cannot pay the filing 18 fees necessary to pursue the action. 28 U.S.C. § 1915(a)(1). The 19 court may deny in forma pauperis status, however, if it appears 20 from the face of the proposed complaint that the action is 21 factually or legally frivolous or without merit. O’Loughlin v. 22 Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First National 23 24 25 26 27 28 1 On December 9, 2005, this Court entered a pre-filing order regarding the cases filed by Plaintiff. The Court has previously conducted a pre-filing review of the complaint filed in the instant case and found that it did not concern one of the matters mentioned in the pre-filing order. See Docket No. 1, Case No. 11-MC-80068. 1 Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). 2 pauperis complaint is frivolous if it has “no arguable basis in 3 fact or law.” 4 1379; Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). 5 The Court finds that Plaintiff’s complaint is legally 6 7 An in forma O’Loughlin, 920 F.2d at 617; Tripati, 821 F.2d at frivolous. California Penal Code section 12370(a) makes it a felony for 8 any person who has been convicted of a violent felony to wear body 9 armor. However, under California Penal Code section 12370(b), United States District Court For the Northern District of California 10 “any person whose employment, livelihood, or safety is dependent 11 on the ability to legally possess and use body armor” and “who is 12 subject to the prohibition imposed by subdivision (a) due to a 13 prior violent felony conviction” can “file a petition with the 14 chief of police or county sheriff of the jurisdiction in which he 15 or she seeks to possess and use the body armor for an exception to 16 this prohibition.” 17 police or sheriff may reduce or eliminate the prohibition, impose 18 conditions on reduction or elimination of the prohibition, or 19 otherwise grant relief from the prohibition as he or she deems 20 appropriate,” based on findings that “the petitioner is likely to 21 use body armor in a safe and lawful manner” and “has a reasonable 22 need for this type of protection under the circumstances.” 23 Cal. Penal Code § 12370(b). “The chief of Id. Plaintiff files his complaint as a “petition for a permit to 24 wear body armor” pursuant to California Penal Code 25 section 12370(b) and names as Respondents the San Francisco Chief 26 of Police, the San Francisco Police Department and the California 27 Attorney General. 28 attaches what he states is his “San Francisco Police Department He alleges that he has a felony conviction and 2 Criminal History Record.” 2 granted a permit to wear body armor because he is in imminent 3 danger of serious harm. 4 he has file a relevant petition with Chief of Police or with the 5 Sheriff’s Department for a permit, been denied one, that such 6 denial was wrongful or that Respondents have violated his rights 7 in any way. 8 section 12370 is facially unconstitutional in any way. 9 Plaintiff seeks a determination that he should be allowed relief 10 United States District Court For the Northern District of California 1 from the prohibition contained in section 12370(a), he must begin 11 by filing a petition with the appropriate chief of police or 12 county sheriff. 13 He also argues that he should be Plaintiff, however, does not allege that He also does not allege that California Penal Code If Finally, Plaintiff labels his complaint as a petition for a 14 writ of habeas corpus. 15 is not cognizable in a habeas petition. 16 corpus is an attack by a person in custody upon the legality of 17 that custody, and . . . the traditional function of the writ is to 18 secure release from illegal custody.” 19 F.3d 996, 999 (9th Cir. 2005) (internal quotation marks and 20 citation omitted). 21 in violation of the Constitution or federal laws. 22 § 2254(a) (providing that federal courts may consider a habeas 23 petition from a state prisoner “only on the ground that he is in 24 custody in violation of the Constitution or laws or treaties of 25 the United States”). 26 However, the relief that Plaintiff seeks “The essence of habeas Burnett v. Lampert, 432 Plaintiff does not claim that he is in custody See 28 U.S.C. Accordingly, Plaintiff’s request to proceed in forma pauperis 27 is denied without prejudice. 28 regular filing fee for a civil case within thirty days of the date If Plaintiff does not pay the 3 1 of this Order, the Court will dismiss the action without 2 prejudice. 3 IT IS SO ORDERED. 4 5 6 Dated: 2/25/2013 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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