Olmo v. Google, Inc.

Filing 7

ORDER by Magistrate Judge Howard R. Lloyd granting 2 Motion for Leave to Proceed in forma pauperis; denying moot 3 Motion for Permission for Electronic Case Filing; ORDER DISMISSING CASE. The clerk shall close this file. (hrllc2, COURT STAFF) (Filed on 1/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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JOHN IVAN OLMO,
Plaintiff,

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v.
GOOGLE, INC.,
Defendant.

ORDER (1) GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS;
(2) DENYING MOTION FOR
PERMISSION FOR ELECTRONIC
CASE FILING
ORDER DISMISSING CASE
Re: Dkt. Nos. 2, 3

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Case No. 5:15-cv-05502-HRL

John Ivan Olmo, proceeding pro se, filed the instant action, along with an application for

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leave to proceed in forma pauperis (IFP). His complaint appears to arise out of another lawsuit

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Olmo filed in the United States District Court in Massachusetts (Massachusetts Action), which

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evidently has been dismissed.

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Olmo’s present complaint is not the model of clarity. Nevertheless, what this court is able

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to gather from the allegations is this: Olmo contends that the presiding judge in the

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Massachusetts Action should not have dismissed his case without permitting Olmo to obtain

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certain discovery from Google, Inc. (Google). He now asks this court to vacate the dismissal of

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the Massachusetts Action and to permit him to conduct discovery of Google in aid of his

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Massachusetts claims. Olmo has expressly consented that all proceedings in this matter may be

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heard and finally adjudicated by the undersigned. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the

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reasons to be discussed, Olmo’s IFP application is granted; however, his complaint will be

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dismissed without leave to amend, and his request for discovery is denied.1
An IFP application may be granted if the court is satisfied that the applicant cannot pay the

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requisite filing fees. 28 U.S.C § 1915(a)(1). In evaluating such an application, the court should

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“gran[t] or den[y] IFP status based on the applicant’s financial resources alone and then

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independently determin[e] whether to dismiss the complaint on the grounds that it is frivolous.”

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Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5 (9th Cir. 1984). A court may dismiss a case filed

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without the payment of the filing fee whenever it determines that the action “(i) is frivolous or

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malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief

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against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Section

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United States District Court
Northern District of California

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1915(e) applies to all IFP complaints, not just those filed by prisoners. Lopez v. Smith, 203 F.3d

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1122, 1129 (9th Cir. 2000).
This court finds that Olmo qualifies financially for IFP status, and his IFP application

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therefore is granted. Nevertheless, this court concludes that this matter must be dismissed because

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Olmo’s complaint does not present facts or legally coherent theories of liability establishing a

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viable claim for relief. Olmo essentially brings a de facto appeal of the dismissal of his

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Massachusetts Action. This court, however, lacks any authority to review, vacate, or modify in

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any way the orders issued by the presiding judge in that case, and Olmo’s request for permission

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to conduct discovery in connection with his dismissed lawsuit is denied. Moreover, to the extent

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Olmo’s complaint suggests that the Massachusetts district judge’s dismissal order somehow

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constituted misconduct, it is well settled that judges acting within their judicial jurisdiction are

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absolutely immune from liability for damages. Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213,

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18 L.Ed.2d 288 (1967); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Here,

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the record indicates that the complained-of conduct concerns alleged acts performed by the

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Massachusetts district judge acting in his judicial capacity and within his judicial jurisdiction.

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Further, this court finds that the deficiencies in Olmo’s complaint cannot be remedied by

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Olmo’s Motion for Permission for Electronic Case Filing (Dkt. 3) is denied as moot. In any
event, his motion indicates that he lacks all the equipment necessary for e-filing status.
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amendment and that any amendment therefore would be futile.
Accordingly, Olmo’s complaint is dismissed with prejudice. The clerk shall enter

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judgment of dismissal and close this file.2

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SO ORDERED.

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Dated: January 4, 2016
________________________
HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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Olmo states that he is homeless. Accordingly, this order will be mailed to the only address
identified in his papers, apparently belonging to his employer.
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5:15-cv-05502-HRL A copy of this order sent on January 4, 2016 by U.S. Mail to:

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John Ivan Olmo
c/o Labor Ready
1605 Jefferson Street #100
Oakland, CA 94612

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United States District Court
Northern District of California

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