Scott v. San Diego Port Authority et al

Filing 3

ORDER Granting Motion To Proceed In Forma Pauperis And Dismissing Complaint Without Prejudice For Failure To State A Claim: The Court grants Plaintiff's motion to proceed in forma pauperis (2). Plaintiff's Complaint is dismissed without prejudice and with leave to amend. The Clerk of the Court is Ordered to close this case. Plaintiff may reopen this case by filing a First Amended Complaint on or before 12/17/07. Signed by Judge William Q. Hayes on 11/9/07. (mdc)

Scott v. San Diego Port Authority et al

Doc. 3

Case 3:07-cv-02110-WQH-LSP

Document 3

Filed 11/09/2007

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HAYES, Judge: Pending before the Court is Plaintiff's motion to proceed in forma pauperis. (Doc. # 2). DISCUSSION & ORDER On November 5, 2007, Plaintiff Mark Scott filed a Complaint against Defendants San Diego Port Authority, Laura Tosado, and the Marine Group. (Doc. # 1). Plaintiff also filed the presently pending motion to proceed in forma pauperis. (Doc. # 2). I. Motion to Proceed In Forma Pauperis All parties instituting a civil action, suit, or proceeding in a district court of the United States, other than a petition for writ of habeas corpus, must pay a filing fee of $350.00. 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, -1Dockets.Justia.com

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
MARK SCOTT, vs. Plaintiff, CASE NO. 07CV2110 WQH (LSP) ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM

SAN DIEGO PORT AUTHORITY, LAURA TOSADO, and THE MARINE GROUP, Defendants.

Case 3:07-cv-02110-WQH-LSP

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Filed 11/09/2007

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116 (9th Cir. 1965). In his accompanying affidavit, Plaintiff states that he is not employed, and has not been employed since 1993. Plaintiff currently receives $750.00 per/month in Social Security Benefits, and has $100.00 in a savings account. Plaintiff does not own a car, and aside from the savings account, does not own other assets such as stocks, bonds, or securities. Plaintiff pays $450.00 per/month for rent. After considering Plaintiff's motion and the accompanying affidavit, the Court determines that Plaintiff cannot afford to pay the filing fee in this case and is eligible to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). The Court therefore GRANTS Plaintiff's motion to proceed in forma pauperis. (Doc. # 2). II. Sua Sponte Screening of the Complaint Pursuant to 28 U.S.C. § 1915(e)(2) Pursuant to 28 U.S.C. § 1915(e)(2), "[w]hen a complaint is filed in forma pauperis, it must be dismissed prior to service of process if it is frivolous or malicious, fails to state a claim, or seeks monetary damages from defendants who are immune from suit." Borhani v. Real Estate Companies, No. C 07-04637 PJH, 2007 U.S. Dist. LEXIS 72952, *4 (N.D. Cal. Sept. 21, 2007) (citing 28 U.S.C. § 1915(e)(2)). The purpose of 28 U.S.C. § 1915(e)(2) is to prevent "abusive or captious litigation," and to "spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke v. Williams, 490 U.S. 319, 324 (1989). "A complaint is frivolous for the purposes of § 1915(e) if it lacks any arguable basis in fact or law." Borhani, No. C 07-04637 PJH, 2007 U.S. Dist. LEXIS 72952, *4 (N.D. Cal. Sept. 21, 2007) (citing Neitzke, 490 U.S. at 328-330)). A complaint may be dismissed for failure to state a claim where the factual allegations do not raise the "right to relief above the speculative level." Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1965 (2007); see also FED R. CIV. P. 8(a)(2). In determining whether a complaint fails to state a claim for relief, a court must construe the pleadings in the light most favorable to the plaintiff, and further, must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003); see Sconiers v. Cal. Dep't of Soc. Serv., No. CV F 06-1260 AWI LJO, 2007 U.S. Dist. LEXIS 14485, *2-6 (E.D. Cal. Feb. 16, 2007). Plaintiff's Complaint is less than one page in length and makes vague reference to a ship or -2-

Case 3:07-cv-02110-WQH-LSP

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Filed 11/09/2007

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vessel known as the "Tradition." Complaint at 1. The Complaint also refers to the vessel's "seizure," and notes that the vessel is "under no persons ownership." Compl. at 1. However, aside from these vague references, the Court cannot determine (1) whether Plaintiff claims an ownership interest in the vessel, (2) how or why Defendants are subject to suit, (3) what injury, if any, Plaintiff suffered, and (4) what relief Plaintiff is seeking. After reviewing the Complaint, the Court concludes that the Complaint does not put Defendants on fair notice of the claims against them, and does not raise the "right to relief above the speculative level." Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1965 (2007). Accordingly, the Court sua sponte dismisses Plaintiff's Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). IT IS HEREBY ORDERED that Plaintiff's Complaint is DISMISSED without prejudice and with leave to amend. The Clerk of the Court is Ordered to close this case. Plaintiff may reopen this case by filing a First Amended Complaint on or before Monday, December 17, 2007. IT IS SO ORDERED. DATED: November 9, 2007 WILLIAM Q. HAYES United States District Judge

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