Sandoval v. Carter

Filing 5

ORDER: The Motion for Leave to Proceed in Forma Pauperis (Doc. 2 ) is granted. The Complaint is dismissed without prejudice, and this case shall be closed. The Motion to Appoint Counsel (Doc. 3 ) is denied as moot. Signed by Judge William Q. Hayes on 12/9/2009. (All non-registered users served via U.S. Mail Service.) (mdc) (av1).

1 2 3 4 5 6 7 8 9 10 11 HAYES, Judge: 12 The matters before the Court are the Motion for Leave to Proceed In Forma Pauperis 13 (Doc. # 2) and the Motion to Appoint Counsel (Doc. # 3). 14 15 BACKGROUND On December 2, 2009, Plaintiff Grace L. Sandoval, a nonprisoner proceeding pro se, GRACE L. SANDOVAL, vs. MARTHA P. CARTER, Plaintiff, CASE NO. 09cv2695 WQH (WVG) ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Defendant.

16 initiated this action by filing the Complaint. (Doc. # 1). On December 2, 2009, Plaintiff also 17 filed the Motion for Leave to Proceed In Forma Pauperis ("Motion to Proceed IFP") (Doc. # 18 2) and the Motion to Appoint Counsel (Doc. # 3). Plaintiff also filed a RICO Notice alleging 19 unlawful conduct in violation of 18 U.S.C. § 1962. (Doc. # 4). 20 21 I. 22 Motion to Proceed IFP All parties instituting any civil action, suit, or proceeding in a district court of the ANALYSIS

23 United States, except an application for a writ of habeas corpus, must pay a filing fee of $350. 24 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the 25 entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 26 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 2009). 27 In her affidavit accompanying the Motion to Proceed IFP, Plaintiff states that she is not 28 employed. (Doc. # 2 at 2). Plaintiff states she was last employed in August of 2009 earning
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1 $86 per shift at Safe Haven Home Care in El Centro, California. Id. Plaintiff states she has 2 no income except for unemployment insurance payments of $40 per week. Id. Plaintiff states 3 she has a checking account with a balance of $900.00 and no savings. Id. Plaintiff states she 4 owns a 2002 Honda Civic and does not have any other significant assets such as real estate, 5 stocks, bonds, or securities. Id. Plaintiff states she owes money to the "U.S. Department of 6 Education" and to "Cash Collection." Id. The Court has reviewed Plaintiff's affidavit of 7 assets and finds that it is sufficient to show that Plaintiff is unable to pay the fees or post 8 securities required to maintain this action. The Court grants the Motion to Proceed IFP 9 pursuant to 28 U.S.C. § 1915. 10 II. 11 Initial Screening Pursuant to 28 U.S.C. § 1915(a) After granting IFP status, the Court must dismiss the case if the case "fails to state a

12 claim on which relief may be granted" or is "frivolous." 28 U.S.C. § 1915(e)(2)(B). 13 The standard used to evaluate whether a complaint should be dismissed is a liberal one,

14 particularly when the action has been filed pro se. See Estelle v. Gamble, 429 U.S. 97, 97 15 (1976). However, even a "liberal interpretation . . . may not supply elements of the claim that 16 were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th 17 Cir. 1982). 18 A complaint "is frivolous where it lacks an arguable basis either in law or fact. [The]

19 term `frivolous,' when applied to the complaint, embraces not only the inarguable legal 20 conclusion, but also the fanciful factual allegation." Neitzke v. Williams, 490 U.S. 319, 325 21 (1989); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). When determining whether 22 a complaint is frivolous, the Court need not accept the factual allegations as true, but must 23 "pierce the veil of the complaint," to determine if the allegations are "fanciful," "fantastic," 24 or "delusional." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke, 490 U.S. 25 at 327-28). 26 27 28 The following is an example of the Complaint's allegations: I, Grace L. Sandoval, also known as Grace S. Salali, Lupe Graciela Sandoval, do not agree for anyone employed in law enforcement with false documents to force in my place of residence, to follow me, Grace L. Sandoval, in public, to follow me, Grace L. Sandoval, in my place of employment, to attack, to demand
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illegals, criminals, orphans, children born premature with the drug Proviera illegally etc., to force the drug Diprivan Causing the drug Riprivan to threaten to pull my mouth brutally to cause to fall. Marylyn P. Garcia is also very violent and dangerous. Manuel Garcia is a massacre. Manuel Garcia has no employment. Manuel Garcia planned his disability of one foot to qualify for disability. (Doc. # 1 at 4). The Complaint contains twenty-four pages of rambling, often fantastic allegations similar to the example quoted above. The complaint does not allege any legal basis under which Plaintiff is entitled to relief. The allegations in the complaint are insufficient to put Defendants on notice of the claims against them, as required by Rule 8 of the Federal Rules of Civil Procedure.1 The Court finds that Plaintiff fails to state a claim on which relief can be granted. The Court dismisses the Complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(I). III. Appointment of Counsel In light of the Court's sua sponte dismissal of this action, Plaintiff's request for appointment of counsel is denied as moot. CONCLUSION IT IS HEREBY ORDERED that the Motion for Leave to Proceed in Forma Pauperis (Doc. # 2) is GRANTED. The Complaint is DISMISSED without prejudice, and this case shall be closed. The Motion to Appoint Counsel (Doc. # 3) is DENIED as moot. DATED: December 9, 2009 WILLIAM Q. HAYES United States District Judge

Federal Rule of Civil Procedure 8 provides: "A pleading that states a claim for relief 27 must contain: (1) a short and plain statement of the grounds for the court's jurisdiction...; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) 28 a demand for the relief sought...." Fed. R. Civ. P. 8(a). Rule 8(d) provides that "[e]ach allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d).
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