Hurt v. United States Of America

Filing 9

ORDER dismissing complaint and denying request to proceed in forma pauperis. Signed by Judge Hamilton on 07/06/2012. (pjhlc2, COURT STAFF) (Filed on 7/6/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TYRONE HURT,
Plaintiff,

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v.
UNITED STATES OF AMERICA,

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For the Northern District of California

United States District Court

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No. C 12-3142 PJH
ORDER DISMISSING COMPLAINT
AND DENYING REQUEST TO
PROCEED IN FORMA PAUPERIS

Defendant.
_______________________________/

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The court has received plaintiff’s complaint and application to proceed in forma

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pauperis, both filed in this court on June 15, 2012. Because there is no legal basis for

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plaintiff's complaint, the court denies plaintiff’s application and dismisses the complaint sua

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sponte.

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Under 28 U.S.C. § 1915(a), "[a]ny court of the United States may authorize the

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commencement . . . of any suit . . . without prepayment of fees and costs or security

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therefor, by a person who makes affidavit that he is unable to pay such costs or give

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security therefor." In reviewing an application to proceed in forma pauperis, the court may

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dismiss a case sua sponte if the court determines that the party applying for in forma

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pauperis status has filed a frivolous action. 28 U.S.C. § 1915(e)(2); Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989). For purposes of 28 U.S.C. § 1915, a frivolous claim is

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one that lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319,

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325, 109 S. Ct. 1827, 1831-32 (1989). Dismissal on these grounds is often done sua

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sponte prior to the issuance of process, so as to spare prospective defendants the

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inconvenience and expense of answering such complaints. Id., 490 U.S. at 324, 109 S. Ct.

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at 1831. Where a litigant is acting pro se and the court finds the litigant's complaint

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frivolous within the meaning of 28 U.S.C. § 1915(e)(2), the court must give the litigant

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notice of the deficiencies of the complaint and an opportunity to amend before final

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dismissal, unless it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Eldridge v.

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Block, 832 F.2d 1132, 1135-37 (9th Cir. 1987).

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Plaintiff’s complaint consists of three handwritten pages that are largely illegible and

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generally incomprehensible where legible. See generally IFP Complaint. Although plaintiff

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makes vague allegations regarding “same-sex marriage” being “in violation of the Eighth

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Amendment,” plaintiff alleges no clear facts in support of his complaint, states no legitimate
basis for the court’s subject matter jurisdiction, and does not identify any recognizable

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For the Northern District of California

United States District Court

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causes of action. As such, it is impossible to discern from plaintiff’s complaint the legal

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theories under which plaintiff seeks relief. Accordingly, the court finds plaintiff’s complaint

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frivolous within the meaning of 28 U.S.C. § 1915(e), and plaintiff’s complaint is

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DISMISSED.

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Although the court is of the opinion that re-pleading will not resolve the deficiencies

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in the complaint, the court will nonetheless allow plaintiff an opportunity to file an amended

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complaint. For that amended complaint to be successful, plaintiff must specify the number

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of defendants being sued and identify each defendant by official name; must allege

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separate causes of action; must state a constitutional or statutory basis for each cause of

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action; and must allege facts showing each defendant’s personal involvement in the

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wrongful act alleged in each cause of action. In addition, plaintiff’s amended complaint

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must allege what the nature of any past related lawsuit was, and whether that lawsuit was

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filed and heard in state or federal court. Specifically, the court notes that plaintiff filed

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another lawsuit in this court, alleging virtually identical causes of action. See Hurt v. US,

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C 12-3240 (filed June 22, 2012). Because the court has already dismissed that case and

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ordered the plaintiff to file an amended complaint in accordance with the above instructions,

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it sees fit to impose the same deadline here. Thus, any amended complaint must be filed

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no later than July 19, 2012.
If plaintiff fails to file the amended complaint by July 19, 2012, or if he files an

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amended complaint not in accordance with the above instructions, the case will be

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dismissed with prejudice.

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Because the court orders dismissal pursuant to 28 U.S.C. § 1915, plaintiff’s request

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to proceed in forma pauperis is DENIED without prejudice. The court will construe an

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amended complaint as a renewed request which will be granted if the amended complaint

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states a viable cause of action.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.
Dated: July 6, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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