Spraggins v. Cox
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis, ORDER of Dismissal. This action is dismissed without prejudice but without leave to amend, both for failure to state a claim and for improper venue. Signed by Judge Larry Alan Burns on 4/26/11. (All non-registered users served via U.S. Mail Service)(kaj) (av1).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DON ALLEN SPRAGGINS,
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CASE NO. 11cv850-LAB (BLM)
Plaintiff,
ORDER GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS; AND
vs.
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SHERINA MICHELLE COX,
ORDER OF DISMISSAL
Defendant.
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On April 21, 2011, Plaintiff Don Spraggins filedhis complaint, along with a motion to
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proceed in forma pauperis (IFP). All parties instituting any civil action, suit or proceeding in
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a United States District Court must pay a filing fee. See 28 U.S.C. § 1914(a). An action may
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proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave
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to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176,
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1177 (9th Cir. 1999).
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The Court has reviewed the IFP application, finds Spraggins lacks the means to pay
the $350 filing fee for this action, and GRANTS his application to proceed IFP.
Pursuant to 28 U.S.C. § 1915(e)(2), the Court is obligated to dismiss this case at any
time if it determines that
(A) the allegation of poverty is untrue; or
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
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10cv850
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In furtherance of its responsibilities under § 1915(e)(2)(B), the Court has reviewed the
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complaint in order to determine whether dismissal is required. See Barren v. Harrington, 152
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F.3d 1193, 1194 (9th Cir. 1998) (requiring, pursuant to 28 U.S.C. § 1915(e), preliminary
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screening of complaints brought IFP).
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The complaint was filed on a form for complaints under 42 U.S.C. § 1983, but it is
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evident Spraggins is not bringing a § 1983 action. He has not alleged the Defendant,
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Sherina Cox, was acting under color of state law. Rather, he alleges Cox made false
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statements under oath in some kind of court proceeding in Alaska. He does not say what
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her role in the litigation was, but it appears she is his ex-wife. Even assuming this was
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defamatory, it appears to be subject to the litigation privilege; if it is unprivileged, Spraggins
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has not provided adequate information to explain why not. Furthermore, it is unclear how
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the testimony was defamatory.
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The complaint also cites 18 U.S.C. § 1621 and Georgia and Alaska state statutes
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making perjury a crime. Several pages of the complaint are headed “Criminal Complaint.”
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None of these statutes support a claim. See Poe v. Huckabay, 2010 WL 1663141 at *9
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(E.D.Cal., April 22, 2010) (“Criminal statutes generally do not provide a private cause of
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action or a basis for civil liability.”) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
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1980); Pawelek v. Paramount Studios Corp., 571 F. Supp 1082, 1083 (N.D.Ill, 1983)). It
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therefore appears the complaint does not state a claim.
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The complaint concerns events in Georgia (where Cox apparently resides) and
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Alaska. Spraggins resides in Santa Barbara, California, which is in the Central District of
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California. It is unclear which of those might be the proper venue for Spraggins’ claims, see
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also 28 U.S.C. § 1391 (venue provisions), but it is clear nothing in the complaint connects
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any claims to this District. Ordinarily, the Court would permit Spraggins to amend the
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complaint to state a claim. But because it is clear venue is not proper in this District,
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dismissal is proper for this basis alone. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th
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Cir. 1986) (holding that a district court may dismiss a complaint sua sponte for improper
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venue).
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10cv850
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This action is therefore DISMISSED WITHOUT PREJUDICE but WITHOUT LEAVE
TO AMEND, both for failure to state a claim and for improper venue.
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IT IS SO ORDERED.
DATED: April 26, 2011
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HONORABLE LARRY ALAN BURNS
United States District Judge
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10cv850
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