Hemdon v. San Diego Police Department

Filing 4

ORDER granting 2 Motion to proceed in forma pauperis and dismissing complaint without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. 1915(e)(2)(B)(ii). The Court denies 3 Plaintiff's request for appointment of counsel as moot. Signed by Judge Dana M. Sabraw on 8/31/10. (All non-registered users served via U.S. Mail Service)(lao)

-JMA Hemdon v. San Diego Police Department

Doc. 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 SAN DIEGO POLICE DEPARTMENT, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, a non-prisoner proceeding pro se, has submitted a Complaint, Motion and Declaration Under Penalty of Perjury in Support of Motion to Proceed In Forma Pauperis ("IFP"), and a request for appointment of counsel. Motion to Proceed IFP 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 IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). This Court finds Plaintiff's affidavit of assets is sufficient to show she is unable to pay the fees or post securities required to maintain this action. See Civil Local Rule 3.2(d). Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). -1vs. GINA HERNDON, Plaintiff, CASE NO. 10CV1441 DMS (JMA) ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

10cv1441

Dockets.Justia.com

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

Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any person proceeding IFP 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, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 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). Prior to its amendment by the Prison Litigation Reform Act, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Id. at 1130. The newly enacted 28 U.S.C. § 1915(e)(2), however, mandates that the court reviewing a complaint filed pursuant to the IFP 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 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting the "the language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). As currently pleaded, Plaintiff's complaint is subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which relief may be granted. Plaintiff's Complaint consists of a one paragraph statement indicating that several police officers antagonized her and refused to process a report. Plaintiff does not indicate what claims she is asserting. The "Civil Cover Sheet" included with Plaintiff's Complaint indicates she is suing for slander, harassment, failure to file, and falsifying information, but these are not listed in the Complaint. Further, if those are the claims she is asserting, they do not provide a basis for this Court to exercise jurisdiction over the matter. Plaintiff's Complaint also lacks factual detail regarding the alleged incident. Accordingly, the Court hereby finds that Plaintiff's Complaint must be dismissed for failing to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127. /// -2-

10cv1441

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

Conclusion and Order For these reasons, IT IS HEREBY ORDERED that Plaintiff's Motion to Proceed IFP is GRANTED and the Complaint is DISMISSED without prejudice for failure to state a claim.1 IT IS SO ORDERED. DATED: August 31, 2010

HON. DANA M. SABRAW United States District Judge

In light of the Court's dismissal of Plaintiff's Complaint, the Court denies Plaintiff's request for appointment of counsel as moot. -310cv1441

1