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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JEROME L. GRIMES,

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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.

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No. C 11-1815 CW

________________________________/
Plaintiff Jerome L. Grimes has applied to proceed in forma

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pauperis.1

Having considered all of the papers filed by

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Plaintiff, the Court DENIES the motion for in forma pauperis
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status (Docket No. 2).
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Pursuant to 28 U.S.C. § 1915, a district court may authorize
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the commencement of a civil action in forma pauperis if the court
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is satisfied that the would-be plaintiff cannot pay the filing
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fees necessary to pursue the action.

28 U.S.C. § 1915(a)(1).

The

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court may deny in forma pauperis status, however, if it appears
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from the face of the proposed complaint that the action is
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factually or legally frivolous or without merit.

O’Loughlin v.

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Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First National
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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.

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Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).

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pauperis complaint is frivolous if it has “no arguable basis in

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fact or law.”

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1379; Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

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The Court finds that Plaintiff’s complaint is legally

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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

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any person who has been convicted of a violent felony to wear body

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armor.

However, under California Penal Code section 12370(b),

United States District Court
For the Northern District of California

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“any person whose employment, livelihood, or safety is dependent

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on the ability to legally possess and use body armor” and “who is

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subject to the prohibition imposed by subdivision (a) due to a

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prior violent felony conviction” can “file a petition with the

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chief of police or county sheriff of the jurisdiction in which he

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or she seeks to possess and use the body armor for an exception to

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this prohibition.”

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police or sheriff may reduce or eliminate the prohibition, impose

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conditions on reduction or elimination of the prohibition, or

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otherwise grant relief from the prohibition as he or she deems

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appropriate,” based on findings that “the petitioner is likely to

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use body armor in a safe and lawful manner” and “has a reasonable

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need for this type of protection under the circumstances.”

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Cal. Penal Code § 12370(b).

“The chief of

Id.

Plaintiff files his complaint as a “petition for a permit to

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wear body armor” pursuant to California Penal Code

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section 12370(b) and names as Respondents the San Francisco Chief

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of Police, the San Francisco Police Department and the California

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Attorney General.

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attaches what he states is his “San Francisco Police Department

He alleges that he has a felony conviction and

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Criminal History Record.”

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granted a permit to wear body armor because he is in imminent

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danger of serious harm.

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he has file a relevant petition with Chief of Police or with the

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Sheriff’s Department for a permit, been denied one, that such

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denial was wrongful or that Respondents have violated his rights

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in any way.

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section 12370 is facially unconstitutional in any way.

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Plaintiff seeks a determination that he should be allowed relief

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United States District Court
For the Northern District of California

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from the prohibition contained in section 12370(a), he must begin

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by filing a petition with the appropriate chief of police or

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county sheriff.

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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

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writ of habeas corpus.

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is not cognizable in a habeas petition.

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corpus is an attack by a person in custody upon the legality of

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that custody, and . . . the traditional function of the writ is to

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secure release from illegal custody.”

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F.3d 996, 999 (9th Cir. 2005) (internal quotation marks and

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citation omitted).

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in violation of the Constitution or federal laws.

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§ 2254(a) (providing that federal courts may consider a habeas

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petition from a state prisoner “only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of

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the United States”).

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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

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is denied without prejudice.

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regular filing fee for a civil case within thirty days of the date

If Plaintiff does not pay the

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of this Order, the Court will dismiss the action without

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prejudice.

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IT IS SO ORDERED.

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Dated: 2/25/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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