Herndon v. Social Security Administration

Filing 4

ORDER sua sponte dismissing complaint without prejudice for failure to state a claim upon which relief may be granted; and denying as moot 3 Motion for Leave to Proceed in forma pauperis; denying as moot 2 Motion to Appoint Counsel. Signed by Judge John A. Houston on 07/26/10. (All non-registered users served via U.S. Mail Service)(jpp)

-CAB Herndon v. Social Security Administration

Doc. 4

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 GINA HERNDON, v. Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) Civil No. 10cv1399 JAH(CAB) ORDER SUA SPONTE DISMISSING COMPLAINT WITHOUT PREJUDICE; AND DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [DOC. # 2] AND MOTION TO PROCEED IN FORMA PAUPERIS [DOC. # 3] AS MOOT

SALVATION ARMY, Defendant.

Plaintiff, a non-prisoner appearing pro se, filed the instant complaint on July 2, 2010, along with a motion to proceed in forma pauperis and a motion for appointment of counsel. All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff 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). Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any person seeking to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent it is "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B);
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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 28 U.S.C. § 1915(e)(2) mandates that the Court reviewing a complaint filed pursuant to the in forma pauperis provisions of Section 1915 make and rule on its own motion to dismiss before directing that the complaint be served by the U.S. Marshal pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d at 1127. As currently plead, it is clear that plaintiff's complaint fails to state a claim upon which relief can be granted.1 The standard used to evaluate whether a complaint states a claim is a liberal one particularly when the action has been filed pro se. See Estelle v. Gamble, 429 U.S. 97, 97 (1976). However, even a "liberal interpretation ... may not supply elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "[P]ro se litigants are bound by the rules of procedure." Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Rule 8 of the Federal Rules of Civil Procedure provides that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief ..." Fed.R.Civ. P. 8(a). "[A] plaintiff's obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quotation omitted). Here, plaintiff's complaint consists of a single paragraph which states: They disrespectfully denied me of the privelege (sic) & eligability (sic) to obtain financial support during appropriated (sic) time of need. Their justification does not make sense. This has caused major havoc and should never have been determined not qualifiable (sic). Compl. at 1.
This Court also finds the complaint fails to a basis for federal court subject matter jurisdiction, subjecting the complaint to sua sponte dismissal pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. See California Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974)(it is well settled that a court can dismiss a complaint sua sponte for lack of jurisdiction). Although plaintiff checked the "federal question" box on her civil cover sheet, to invoke federal question jurisdiction, the complaint must allege that the "action[] aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Plaintiff's complaint does not so allege.
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This Court finds these allegations are insufficient to put defendant on notice of the claims against it, as required by Rule 8 of the Federal Rules of Civil Procedure. Therefore, this Court finds the complaint fails to state a claim upon which relief may be granted. Accordingly, the instant complaint must be sua sponte dismissed pursuant to Section 1915(e)(2)(B). Because the complaint must be dismissed, plaintiff's motion to proceed in forma pauperis and request for appointment of counsel are moot. Based on the foregoing, IT IS HEREBY ORDERED that: 1. The instant complaint is sua sponte DISMISSED without prejudice for failure to state a claim upon which relief may be granted; 2. 3. Plaintiff's motion to proceed in forma pauperis is DENIED as moot; and Plaintiff's request for appointment of counsel is DENIED as moot.

DATED:

July 26, 2010 JOHN A. HOUSTON United States District Judge

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