Lynn Gavin et al v. San Francisco Housing Authority et al

Filing 42

ORDER GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT WITH PREJUDICE, AND DENYING "MOTION FOR APPEAL" by Judge Yvonne Gonzalez Rogers; denying 38 Motion for Appeal ; granting 39 Motion for Leave to Proceed in forma pauperis; granting 40 Motion for Leave to Proceed in forma pauperis; granting 41 Motion for Leave to Proceed in forma pauperis. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 4/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LYNN GAVIN, ET AL.,

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Plaintiffs,
vs.

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OFFICE OF THE MAYOR, ET AL.,

CASE NO. 16-cv-04974-YGR
ORDER GRANTING REQUEST TO PROCEED
IN FORMA PAUPERIS, DISMISSING
COMPLAINT WITH PREJUDICE, AND
DENYING “MOTION FOR APPEAL”
Re: Dkt. Nos. 38, 39, 40, 41

Defendants.

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United States District Court
Northern District of California

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Pro se plaintiff Lynn Gavin and her family members Bamidele Hambolu and Ibukun

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Hambolo initially filed this wrongful eviction action in state court, alleging various federal and

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state law violations against multiple defendants. They did so after a court in the Northern District

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of California declared Gavin a vexatious litigant and prohibited her from filing such a suit in

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federal court again without the permission of the court. See Gavin v. City & Cty. of San Francisco,

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No. 15-CV-05202-EMC, 2016 WL 126937 (N.D. Cal. Jan. 12, 2016). On August 30, 2016, the

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federal defendants filed a notice of removal to federal court. (Dkt. No. 1.)

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Plaintiffs have filed a “motion for appeal” (Dkt. No. 38) and have applied to proceed in

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forma pauperis (Dkt. Nos. 39, 40, and 41). Having carefully considered plaintiff’s applications

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and the record in this case, and for the reasons discussed below, the Court GRANTS plaintiffs’ in

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forma pauperis applications and DISMISSES WITH PREJUDICE the instant complaint. For the

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reasons set forth herein, the Court also DENIES plaintiffs’ “motion for appeal”.

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I.

DISCUSSION

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A.

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The Court may authorize a plaintiff to commence an action in federal court in forma

In Forma Pauperis Application

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pauperis, meaning without prepayment of fees or security, if the plaintiff submits an affidavit

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showing that he or she is unable to pay such fees or give security. 28 U.S.C. § 1915(a). When

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presented with an application to proceed in forma pauperis, the Court must first determine if the

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applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See Franklin v.

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Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require an applicant to

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demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d 853, 854

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(10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339).

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In their applications, plaintiffs state that they are currently unemployed and that their only

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source of income is from plaintiff Gavin’s social security, as she is disabled, and from plaintiff

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Hambolo’s CalWORKs payments. Plaintiffs also assert that they lack any assets, and do not own

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any homes or vehicles. Given this information, The Court finds that the application to proceed in

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forma pauperis is well-taken and is GRANTED.

United States District Court
Northern District of California

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B.

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The in forma pauperis statute also provides that the Court shall dismiss the case if at any

Dismissal of the Complaint

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time the Court determines that the allegation of poverty is untrue, or that the action: (1) is

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frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks

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monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). The

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determination of whether the litigant has stated a claim is decided under the same standard used in

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Federal Rule of Civil Procedure 12(b)(6) motions to dismiss. Barren v. Harrington, 152 F.3d

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1193, 1194 (9th Cir. 1998).

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Pursuant to Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon

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which relief may be granted. Dismissal for failure to state a claim under Rule 12(b)(6) is proper if

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there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a

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cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011)

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(quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). The complaint

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must plead “enough facts to state a claim [for] relief that is plausible on its face.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the facts alleged do

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not support a reasonable inference of liability, stronger than a mere possibility, the claim must be
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dismissed. Id. at 678–79. Mere “conclusory allegations of law and unwarranted inferences are

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insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.

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2004).

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“Federal Rule of Civil Procedure 8(a)(2) requires only a ‘short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’ “ Twombly, 550 U.S. at 554–

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55 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original) (citation omitted). Even under the

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liberal pleading standard of Rule 8(a)(2), “a plaintiff’s obligation to provide the grounds of his

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entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286

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United States District Court
Northern District of California

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(1986) (internal brackets and quotation marks omitted)). The Court will not assume facts not

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alleged, nor will it draw unwarranted inferences. Iqbal, 556 U.S. at 679 (“Determining whether a

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complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense.”). Furthermore, a pro se pleading must

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be liberally construed, and “however inartfully pleaded, must be held to less stringent standards

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than formal pleadings drafted by lawyers.” Twombly, 550 U.S. at 570 (citation omitted).

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Here, plaintiffs’ complaint fails to set forth “a short and plain statement of the claim

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showing that the pleader is entitled to relief” as required by Rule 8 of the Federal Rules of Civil

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Procedure. Rather, even construing the complaint liberally, plaintiffs have failed to state the

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essential elements of the numerous claims they bring. The complaint generally describes the

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events pertaining to plaintiffs’ eviction and simply repeats many of the same, conclusory

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allegations regarding defendants’ wrongdoing. Further, all of the claims continue to be brought

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against the San Francisco Housing Authority, and many are also brought against the City and

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County of San Francisco, parties against whom the Court previously dismissed all claims with

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prejudice and without leave to amend. (Dkt. No. 26.) Consequently, the Court is unable to discern

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any legally cognizable claim in plaintiff’s complaint and finds that dismissal of the complaint in

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its entirety is warranted.

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While pro se litigants are generally given the opportunity to amend deficient pleadings,

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leave may be denied where amendment would be futile. This is the eleventh wrongful eviction

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action that plaintiff Gavin has filed alleging that she and her family were wrongfully evicted from

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the Parkmerced apartments in 2012 after they failed to pay allegedly usurious utility bills. All of

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plaintiff Gavin’s cases have been dismissed on various grounds, including preclusion, statute of

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limitations, failure to prosecute, failure to state a viable claim, and failure to comply with

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administrative requirements such as the California Torts Claims Act. Gavin v. City & Cty. of San

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Francisco, No. 15-CV-05202-EMC, 2015 WL 7272678, at *2 (N.D. Cal. Nov. 18, 2015)

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(collecting cases). Although the Court is sympathetic to plaintiffs’ hardships resulting from their
eviction, given the legal deficiencies of plantiffs’ complaint and plaintiff Gavin’s problematic

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United States District Court
Northern District of California

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history of litigation in this district, the Court finds amendment would be futile and DISMISSES the

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complaint WITH PREJUDICE.

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C.

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The Court is also in receipt of plaintiffs’ “Notice of Motion and Motion for Appeal to

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Enjoin with Case Pending in the Court of Appeals.” (Dkt. No. 38.) To the extent plaintiffs are

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requesting the Court issue an order suspending, modifying, restoring, or granting an injunction

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while an appeal is pending, pursuant to Federal Rule of Appellate Procedure 8(a)(1)(C), that

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request is DENIED. However, to the extent plaintiffs appear to filing an appeal of this Court's

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decision to the Ninth Circuit Court of Appeals, that request is DENIED as procedurally improper.

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Plaintiffs are advised that they must comply with Federal Rule of Appellate Procedure 3

Plaintiffs’ “Motion for Appeal”

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and Circuit Rule 3-1 to appeal an order of this Court. Plaintiffs should file a Notice of Appeal

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(Form A-2) with the Court in order to initiate their appeal.

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II.

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CONCLUSION
For the foregoing reasons, plaintiffs’ requests to proceed in forma pauperis are GRANTED,

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plaintiffs’ complaint is DISMISSED WITH PREJUDICE, and plaintiffs’ “motion for appeal” is

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DENIED. The Clerk of the Court shall mail with this order a Notice of Appeal form to the

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plaintiffs.

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This Order terminates the case and Docket Numbers 38, 39, 40, and 41.

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IT IS SO ORDERED.

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Dated: April 11, 2017
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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