Jackson v. San Diego, California et al

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 2 request to proceed in forma pauperis and 3 request for appointment of counsel. Signed by Judge John A. Houston on 09/26/11. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KENNETH M. JACKSON,
v.

Plaintiff,

SAN DIEGO, CALIFORNIA SOCIAL
SECURITY,
Defendant.

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Civil No. 11cv2085 JAH(NLS)
ORDER DISMISSING
COMPLAINT WITHOUT
PREJUDICE AND DENYING
REQUEST TO PROCEED IN
FORMA PAUPERIS AND
MOTION FOR APPOINTMENT OF
COUNSEL AS MOOT

Plaintiff, a non-prisoner appearing pro se, has filed a complaint along with a request

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to proceed in forma pauperis and a motion for appointment of counsel.

All parties

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instituting any civil action, suit or proceeding in a district court of the United States,

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except an application for writ of habeas corpus, must pay a filing fee of $350. See

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28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the

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entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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Notwithstanding payment of any filing fee or portion thereof, a complaint filed by

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any person seeking to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject

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to a mandatory and sua sponte review and dismissal by the court to the extent it is

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“frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking

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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.

11cv2085

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§ 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27

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(9th Cir. 2000) (en banc). 28 U.S.C. § 1915(e)(2) mandates that the Court reviewing a

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complaint filed pursuant to the in forma pauperis provisions of Section 1915 make and rule

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on its own motion to dismiss before directing that the complaint be served by the U.S.

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Marshal pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d at 1127.

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As currently plead, it is clear that plaintiff’s complaint fails to state a claim upon

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which relief can be granted. Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

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of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory.

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Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke

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v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a

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claim on the basis of a dispositive issue of law.”). Alternatively, a complaint may be

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dismissed where it presents a cognizable legal theory yet fails to plead essential facts under

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that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give “detailed factual

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allegations,” he must plead sufficient facts that, if true, “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

Dismissal is

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To meet the requirements of Rule 12(b)(6), “a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547).

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A claim is facially plausible when the factual allegations permit “the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other

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words, “the non-conclusory ‘factual content,’ and reasonable inferences from that content,

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must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009).

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Plaintiff’s complaint consists of a single paragraph containing unintelligible

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allegations that defendant Social Security “lied for years” concerning an “overpayment.”

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Compl. at 1. This Court finds that there are no allegations in plaintiff’s complaint that

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can reasonably be construed as presenting a cognizable claim for relief. Therefore, the
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11cv2085

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complaint must be sua sponte dismissed pursuant to Section 1915(e)(2)(B) for failure to

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state a claim upon which relief may be granted. Because the complaint must be dismissed,

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plaintiff’s request to proceed in forma pauperis and motion for appointment of counsel are

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moot.

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Accordingly, IT IS HEREBY ORDERED that:

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failure to state a claim upon which relief may be granted; and

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The instant complaint is sua sponte DISMISSED without prejudice for

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Plaintiff’s request to proceed in forma pauperis and motion for appointment
of counsel are DENIED as moot.

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DATED:

September 26, 2011
JOHN A. HOUSTON
United States District Judge

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