Calhoon v. San Diego Police Department et al

Filing 4

ORDER: The (Doc. 2 ) Motion for Leave to Proceed in Forma Pauperis is granted. The Complaint is dismissed without prejudice, and this case shall be closed. The (Doc. 3 ) Motion to Appoint Counsel is denied as moot. Signed by Judge William Q. Hayes on 8/10/2010. (All non-registered users served via U.S. Mail Service.) (mdc)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 BRUCE DERRICK CALHOON, Disabled Air Force and Navy Veteran, vs. Plaintiff, CASE NO. 10cv1629 WQH (POR) ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

SAN DIEGO POLICE DEPARTMENT; SAN DIEGO COUNTY and all of its corrupt partners; SAN DIEGO SHERIF DEPARTMENT; JUSTICE DEPARTMENT; FBI; CHULA VISTA POLICE DEPARTMENT; AMC 24 MOVIE THEATERS; UPS; SOCIAL SECURITY; CHASE BANK; BANK OF AMERICA; WELLS FARGO; MTS; UCSD; USD; SDSU; MACYS; RALHPS; SEARS; ROSS; ROGER T. BENITEZ; STORMES; ETC... ,

Defendants. 21 HAYES, Judge: 22 The matters before the Court are Plaintiff's Motion to Proceed in Forma Pauperis (Doc. 23 # 2) and Motion to Appoint Counsel (Doc. # 3). 24 BACKGROUND 25 On August 4, 2010, Plaintiff, a non-prisoner proceeding pro se, initiated this action by 26 filing his Complaint. (Doc. # 1). Also on August 4, 2010, Plaintiff filed his Motion for Leave 27 to Proceed in Forma Pauperis ("IFP") (Doc. # 2) and his motion to Appoint Counsel (Doc. 28 # 3).
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1 2 I. 3 Motion to Proceed IFP

ANALYSIS

All parties instituting any civil action, suit, or proceeding in a district court of the

4 United States, except an application for a writ of habeas corpus, must pay a filing fee of $350. 5 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the 6 entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 7 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 2009). 8 In his affidavit accompanying his Motion to Proceed IFP, Plaintiff states he has not

9 been employed since 1989. (Doc. # 2 at 2). Plaintiff states his only income is social security 10 checks of $1,074.00 per month. Id. Plaintiff states he has no significant assets such as real 11 estate or stocks. Id. at 3. Plaintiff states he has $5 in a checking account. Id. at 2. The Court 12 has reviewed Plaintiff's affidavit of assets and finds that it is sufficient to show that Plaintiff 13 is unable to pay the fees or post securities required to maintain this action. The Court grants 14 the Motion to Proceed IFP pursuant to 28 U.S.C. § 1915. 15 II. 16 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

17 claim on which relief may be granted" or is "frivolous." 28 U.S.C. § 1915(e)(2)(B). 18 The standard used to evaluate whether a complaint should be dismissed is a liberal one,

19 particularly when the action has been filed pro se. See Estelle v. Gamble, 429 U.S. 97, 97 20 (1976). However, even a "liberal interpretation . . . may not supply elements of the claim that 21 were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th 22 Cir. 1982). 23 A complaint "is frivolous where it lacks an arguable basis either in law or fact. [The]

24 term `frivolous,' when applied to the complaint, embraces not only the inarguable legal 25 conclusion, but also the fanciful factual allegation." Neitzke v. Williams, 490 U.S. 319, 325 26 (1989); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). When determining whether 27 a complaint is frivolous, the Court need not accept the factual allegations as true, but must 28 "pierce the veil of the complaint," to determine if the allegations are "fanciful," "fantastic,"
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1 or "delusional." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke, 490 U.S. 2 at 327-28). 3 Plaintiff's Complaint is a single page of handwritten allegations. See Doc. # 1 at 1. On

4 the accompanying Civil Cover Sheet, Plaintiff states his cause of action is a claim under the 5 Racketeer Influenced and Corrupt Organizations Act ("RICO"). Id. at 2. On the Civil Cover 6 Sheet, Plaintiff's "Brief description of cause" states "You are corrupt ­ Mayor Sanders says 7 so on T.V." Id. Plaintiff's Complaint states, in its entirety: 8 9 10 11 12 13 14 that the above named and their corrupt partners in this gay wet county (wet counties are illegal ­ they have to be dry counties) attempted to murder me Bruce Derrick Calhoun disabled air force and navy veteran again after falsif[y]ing federal court documents for the tenth time (10). The CIA watched (YMZ2Y confirmation number) Special Agent Amelia (FBI) watched. They told me to get "down[.]" Two females in black and pants in the 4th floor clerk's lobby of the United States District Court Southern District of California in another failed murder attempt with entrapment after you murdered my wife, my mother, and my Grand Mother (Daphne Christie McKinney Calhoun, Mary Whitfiled Leach, Lila Polly Pope Whitfield). This is the 11th filing and the 11th murder attempt inside the Edward J. Schwartz Federal Building by prostitutes with video cell phones and pimps by federal judges with fake diplomas on their walls, beach house, and Bugatti please!"

15 (Doc. # 1 at 1). 16 The Court dismisses the Complaint as lacking an arguable basis in fact pursuant to 28

17 U.S.C. § 1915(e)(2)(B)(i). 18 III. 19 Appointment of Counsel In light of the Court's sua sponte dismissal of this action, Plaintiff's request for

20 appointment of counsel is denied as moot. 21 22 CONCLUSION IT IS HEREBY ORDERED that the Motion for Leave to Proceed in Forma Pauperis

23 (Doc. # 2) is GRANTED. The Complaint is DISMISSED without prejudice, and this case 24 shall be closed. The Motion to Appoint Counsel (Doc. # 3) is DENIED as moot. 25 DATED: August 10, 2010 26 27 28
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WILLIAM Q. HAYES United States District Judge