Gibbs, III v. Kugler et al

Filing 3

ORDER denying 2 Motion for Leave to Proceed in forma pauperis, ORDER of Dismissal. The complaint is dismissed without prejudice for failure to state a claim. If Gibbs believes he can amend to cure the defects this order has identified, he may file an amended complaint by the close of business on March 31, 2014. Before doing so, he must also either pay the filing fee or file a renewed IFP motion showing that he is entitled to proceed IFP. If he does not do both within the time permitted, this action will be dismissed without leave to amend. Signed by Judge Larry Alan Burns on 3/13/14. (All non-registered users served via U.S. Mail Service)(kaj)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

SAMUEL W. GIBBS III,

12

CASE NO. 14cv556-LAB (BLM)
Plaintiff,

ORDER DENYING MOTION TO
PROCEED IN FORMA
PAUPERIS; AND

vs.
13
14

SHARI L. KUGLER, et al.,

ORDER OF DISMISSAL
Defendants.

15
16
17
18

Plaintiff Samuel W. Gibbs III, proceeding pro se, filed his complaint along with a

19

motion to proceed in forma pauperis (IFP). The IFP motion, however, is based on

20

inconsistent financial information. It says, for example, that he earns $7,000 to $8,000 year

21

year plus an estimated $21,000 in tips. But it also says his take-home pay is from zero to

22

$100 every two weeks. Assuming the higher rate of pay is correct, his monthly pay is just

23

over $2,400. Out of that, he says he pays $450 per month for housing, $200 per month for

24

utilities, $300 per month for “work + food,” $700 per month to repay a loan from his 401(k),1

25
26
27
28

1

The IFP motion gives no details about this loan, its term, or whether the monthly
payment can be adjusted. Frequently, for example, loans from funds in a 401(k) plan
participant’s account can be re-amortized to reduce the payment amount. It’s also possible
the loan is nearly paid off, so that even if Gibbs owes $700 on it this month, he might shortly
owe nothing. It is up to an IFP applicant to state the facts with “particularity, definiteness and
certainty.” See United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
-1-

14cv556

1

$250 per month in child support, and $150 per month for health insurance, plus an

2

unspecified amount of support for his son.2 He also has $200 cash in a bank account.

3

The application fails to show that Gibbs cannot pay or give security for the filing fee,

4

and still provide himself and his dependents with the necessities of life. See Adkins v. E. I.

5

DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Instead, it appears he may be able

6

to pay for the necessities of life and still have some money let over with which to pay the

7

filing fee. But the facts are so contradictory that it’s also possible he can’t, and has simply

8

made an error. The motion is DENIED WITHOUT PREJUDICE.

9

Even if the Court were to grant Gibbs’ motion to proceed IFP, it would be required to

10

screen his complaint and to dismiss it, to the extent it failed to state a claim. See 28 U.S.C.

11

§ 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). The Court

12

is also obligated to examine its own jurisdiction, sua sponte if necessary, and to dismiss the

13

complaint if jurisdiction is lacking. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939,

14

954 (9th Cir. 2011) (en banc).

15

The complaint doesn’t identify the basis for this Court’s exercise of jurisdiction, and

16

therefore violates Fed. R. Civ. P. 8's “short and plain statement” rule. Its factual allegations

17

pertain to a child custody dispute spanning the late 1980s through March of 2001. The Court

18

has no jurisdiction over this, both because it’s almost certain any statute of limitations would

19

have passed by now, and also because under the Rooker-Feldman doctrine, the Court has

20

no jurisdiction to hear de facto appeals of state court judgments. See Reusser v. Wachovia

21

Bank, N.A., 525 F.3d 855, 858–59 (9th Cir. 2008).

22

The only other factual allegation is that in February of 2014, Gibbs’ “income tax check

23

was sent to San Diego Department of Child Support . . . .” Apparently what Gibbs means is

24

that his income tax refund was garnished, in order to pay child support arrears. If Gibbs

25

believes this was unlawful, he hasn’t shown why. Federal law authorizes garnishment of

26

federal tax refunds to pay for past-due child support. See 42 U.S.C.A. § 664. If there was

27
28

2

It’s unclear whether this refers to the $250 Gibbs pays each month for child support,
or if he is supporting two sons.
-2-

14cv556

1

anything irregular or illegal about the garnishment, Gibbs hasn’t alleged what that was. The

2

fact that he disagrees with the child support order entered over a decade ago can’t serve as

3

a basis for relief in this Court, and the Court has no power to vacate or modify that order.

4

The complaint is therefore DISMISSED WITHOUT PREJUDICE for failure to state a

5

claim. If Gibbs believes he can amend to cure the defects this order has identified, he may

6

file an amended complaint by the close of business on March 31, 2014. Before doing so,

7

he must also either pay the filing fee or file a renewed IFP motion showing that he is entitled

8

to proceed IFP. If he does not do both within the time permitted, this action will be dismissed

9

without leave to amend.

10
11
12

IT IS SO ORDERED.
DATED: March 13, 2014

13
14

HONORABLE LARRY ALAN BURNS
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-

14cv556