Bozorgi et al v. World Savings Bank, FSB

Filing 8

ORDER Dismissing Complaint; Denying as Moot 5 Motion for Leave to Proceed in forma pauperis; and Denying as Moot 7 Motion to Dismiss for Failure to State a Claim. It is hereby ordered that the instant complaint is dismissed without prejudice. Bozorgi's motion to proceed in forma pauperis is denied as moot; and Defendant's motion to dismiss is denied as moot. Signed by Judge John A. Houston on 4/11/2012. (All non-registered users served via U.S. Mail Service)(leh)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

MONIREH BOZORGI and DAVIDWYNN: MILLER,

12

Plaintiffs,

13

v.

14

WORLD SAVINGS BANK, FSB,
Defendant.

15

)
)
)
)
)
)
)
)
)
)

Civil No. 12-cv-0434-JAH (DHB)
ORDER DISMISSING
COMPLAINT; DENYING
PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS;
AND DENYING DEFENDANT’S
MOTION TO DISMISS

16
17

On February 17, 2012, Plaintiffs, non-prisoners proceeding pro se, filed a complaint

18

and submitted a $350 check to pay the filing fee required to initiate a civil case. (Dkt.

19

No. 1.) That check was returned unpaid, and, on March 12, 2012, the Clerk of Court

20

issued a notice stating that if Plaintiffs wished to proceed they would need to submit a

21

cashier’s check or money order for $403, which would cover the required filing fee and the

22

$53 returned check fee. (Dkt. No. 4.) On March 15, 2012, plaintiff Monireh Bozorgi

23

(“Bozorgi”) filed a motion to proceed in forma pauperis. (Dkt. No. 5.) Plaintiff David-

24

Wynn: Miller (“Miller”) has neither paid the required fees nor moved to proceed in forma

25

pauperis.

26

Notwithstanding Plaintiffs’ failure to pay the required filing fee and or obtain leave

27

to proceed in forma pauperis, Defendant filed a motion to dismiss pursuant to the Federal

28

Rules of Civil Procedure, Rules 8 and 12. (Dkt. No. 7.)

12cv0434

1

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

2

United States, except an application for writ of habeas corpus, must pay a filing fee of

3

$350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

4

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

5

pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.

6

1999).

7

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

8

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

9

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

10

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

11

seeking monetary relief from a defendant immune from such relief.”

12

1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions

13

of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d

14

1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915 mandates that a court reviewing

15

a complaint filed pursuant to the in forma pauperis provisions of section 1915 make and

16

rule on its own motion to dismiss before directing that the complaint be served by the

17

U.S. Marshal pursuant to Federal Rule of Civil Procedures, Rule 4(c)(2). Lopez, 203 F.3d

18

at 1127.

28 U.S.C. §

19

Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint.

20

Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under

21

Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean

22

Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490

23

U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis

24

of a dispositive issue of law.”). Alternatively, a complaint may be dismissed where it

25

presents a cognizable legal theory yet fails to plead essential facts under that theory.

26

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

27

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

28

level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
2

12cv0434

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

As currently pled, the Court finds Plaintiffs’ complaint fails to state a claim upon

10

which relief can be granted.

Plaintiffs’ complaint consists of eleven pages of

11

indecipherable and nonsensical words and symbols, followed by thirteen pages of

12

documents that Plaintiffs have marked with a series of numbers, which apparently stand

13

for various parts of speech.

14

This Court’s review of the complaint reveals that nothing in Plaintiffs’ complaint

15

can be reasonably construed as presenting a cognizable claim for relief. Therefore, as to

16

Bozorgi, the complaint must be dismissed sua sponte pursuant to section 1915(e)(2)(B)

17

for failure to state a claim upon which relief may be granted. Because the complaint must

18

be dismissed, Bozorgi’s request to proceed in forma pauperis is moot. Further, because

19

Miller has failed to pay the required filing, the complaint must also be dismissed as to

20

Miller. Lastly, Defendant’s motion to dismiss is also moot.

21

Accordingly, IT IS HEREBY ORDERED that:

22

1.

The instant complaint is DISMISSED WITHOUT PREJUDICE;

23

2.

Bozorgi’s motion to proceed in forma pauperis is DENIED AS MOOT; and

24

3.

Defendant’s motion to dismiss is DENIED AS MOOT.

25
26

Dated:

April 11, 2012

27
JOHN A. HOUSTON
United States District Judge

28
3

12cv0434