Thompson v. Scicillian

Filing 14

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND; ORDER DISMISSING CASE. Signed by Judge Yvonne Gonzalez Rogers on 3/1/2013. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 3/1/2013)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 TRACEY N. THOMPSON, 7 8 9 10 Plaintiff, vs. Case No.: 11-CV-05609 YGR ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND JOHN SCICILLIAN, FBI AGENT, Defendant(s). Northern District of California United States District Court 11 12 The Court has reviewed Plaintiff’s Application to Proceed in Forma Pauperis and Request for 13 Leave to Amend Complaint (Dkt. No. 10), which the Court construes as an amended complaint. The 14 Court may authorize a plaintiff to commence an action in federal court without prepayment of fees or 15 security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or give 16 security. 28 U.S.C. § 1915(a). The in forma pauperis statute also provides that the Court shall 17 dismiss the case if at any time the Court determines that the allegation of poverty is untrue, or that the 18 action (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) 19 seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 20 A complaint is classified as “frivolous” where “it lacks an arguable basis either in law or in fact.” 21 Neitzke v. Williams, 490 U.S. 319, 325 (1989). Where a complaint fails to state that any 22 constitutional or statutory right was violated and fails to assert any basis for federal subject matter 23 jurisdiction, there is no arguable basis in law under Neitzke and the Court may dismiss the complaint 24 under 19 U.S.C. § 1915(e)(2)(B). 25 26 27 28 The Court is unable to discern any legally cognizable claim in Plaintiff’s submission. Plaintiff alleges that people have put chemicals into the building’s water supply, including Mick 1 Jagger, whom she alleges put “heroin and rubella virus” into the water.1 Plaintiff appears to 2 complain that the people in the apartment unit above her either are making too much noise or are 3 being tortured, possibly both.2 Finally, Plaintiff appears to take issue with the Defendant John 4 Scicilliian because he has not completed his investigation into the aforementioned conduct despite 5 having investigated for over three years. 6 Plaintiff has failed to set forth “a short and plain statement of the claim showing that the 7 pleader is entitled to relief” as required by Rule 8 of the Federal Rules of Civil Procedure. Therefore, 8 Plaintiff’s complaint is dismissed. Because Plaintiff is proceeding pro se, she already was provided 9 with an opportunity to amend her complaint to comply with the Federal Rules of Civil Procedure 10 Having failed to do so, the Court now dismisses without leave to amend. Northern District of California United States District Court 11 Accordingly, the ORDERS as follows: 12 1) Plaintiff’s Application to Proceed in Forma Pauperis is DENIED. 13 2) Plaintiff’s complaint is DISMISSED WITHOUT LEAVE TO AMEND. To the extent that 14 Plaintiff’s Application to Proceed in Forma Pauperis requests leave to amend, the request is DENIED. 3) 15 16 17 The Clerk shall close the case file. IT IS SO ORDERED. Date: March 1, 2013 18 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 19 20 21 22 23 24 25 26 27 28 1 Plaintiff already has been advised that this set of facts fails to allege the violation of a constitutional or statutory right. See Order Dismissing Amended Complaint, Tracey N. Thompson v. Keith Richards and Michael Philip Jagger, 11-5442 JSC, Dkt. No. 8 (N.D. Cal. Jan. 13, 2012). 2 Plaintiff already has been advised that she does not have standing to complain about harm allegedly being done to her neighbors. See Order of Dismissal, Tracey N. Thompson v. Tenderloin Police Dept., 12-040 SI, Dkt. No. 8 (N.D. Cal. May 19, 2012). 2

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