Harper v. US et al

Filing 3

ORDER Denying Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis and Dismissing Plaintiff's Complaint for Failure to State a Claim. Signed by Judge Gonzalo P. Curiel on 8/10/17. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MONTOREY DANYELL HARPER, Military Leader UNI Star General Montorey LLC, 12 Plaintiff, v. 13 14 ORDER: (1) DENYING PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS AND 15 16 CASE NO. 17CV1587-GPC(MDD) US, NATO, UN, 17 Defendants. (2) DISMISSING PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 18 19 20 On August 8, 2017, Plaintiff Montorey Danyell Harper (“Plaintiff”), proceeding 21 pro se, filed a Complaint against the United States, NATO and the UN. (Dkt. No. 1.) 22 Plaintiff concurrently filed a motion to proceed in forma pauperis (“IFP”). (Dkt. No. 23 2.) For the reasons set forth below, the Court DENIES Plaintiff’s motion to proceed 24 in forma pauperis and DISMISSES Plaintiff’s Complaint for failure to state a claim 25 pursuant to 28 U.S.C. § 1915(e)(2)(B). DISCUSSION 26 27 A. Motion for Leave to Proceed In Forma Pauperis 28 All parties instituting any civil action, suit or proceeding in a district court of the -1- [17cv1587-GPC(MDD)] 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure 3 to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez 5 v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an affidavit 6 demonstrating his inability to pay the filing fee, and the affidavit must include a 7 complete statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). The facts as to the 8 affiant’s poverty must be stated “with some particularity, definiteness, and certainty.” 9 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). When a plaintiff moves 10 to proceed IFP, the court first “grants or denies IFP status based on the plaintiff’s 11 financial resources alone and then independently determines whether to dismiss the 12 complaint” pursuant to 28 U.S.C. § 1915(e)(2). Franklin v. Murphy, 745 F.2d 1221, 13 1226 n.5 (9th Cir. 1984). 14 Here, Plaintiff has provided an affidavit to support his application to proceed in 15 forma pauperis. (Dkt. No. 2.) Plaintiff states that his average monthly income during 16 the past twelve months was approximately $4,231.00. (Id. at 2.) He does not list any 17 assets. (Id. at 3.) Since Plaintiff’s monthly income exceeds his total monthly expenses, 18 which amount to $3110.00, (id. at 4-5), the Court concludes that Plaintiff can afford 19 the $400 filing fee. Accordingly, the Court DENIES Plaintiff’s request to proceed in 20 forma pauperis. 21 B. Sua Sponte Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) 22 A complaint filed by any person proceeding IFP, pursuant to 28 U.S.C. § 23 1915(a), is additionally subject to mandatory sua sponte screening. The Court must 24 review complaints filed by all persons proceeding IFP and must sua sponte dismiss any 25 complaint, or any portion of a complaint, which is frivolous, malicious, fails to state 26 a claim, or seeks damages from defendants who are immune. See 28 U.S.C. § 27 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 28 All complaints must contain “a short and plain statement of the claim showing -2- [17cv1587-GPC(MDD)] 1 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual 2 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 3 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 4 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 5 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . 6 a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. “When there are well-pleaded factual allegations, 8 a court should assume their veracity, and then determine whether they plausibly give 9 rise to an entitlement to relief.” Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 10 F.3d 443, 447 (9th Cir. 2000) (“[W]hen determining whether a complaint states a 11 claim, a court must accept as true all allegations of material fact and must construe 12 those facts in the light most favorable to the plaintiff.”). 13 The Complaint alleges that around March 25, 2017, Plaintiff purchased milk at 14 a Ralph’s grocery store near where he lives and noticed that his milk had water in it and 15 he has been drinking milk with water for months. (Dkt. No. 1 at 1.) Plaintiff does not 16 allege any facts against the named Defendants and does not allege any facts to support 17 a cause of action. As plead, the Complaint fails to state a claim. Accordingly, the 18 Court DISMISSES Plaintiff’s Complaint for failure to state a claim. See 28 U.S.C. § 19 1915(e)(2)(B). 20 21 Conclusion Based on the above, the Court DENIES Plaintiff’s motion to proceed in forma 22 pauperis and DISMISSES the Complaint for failure to state a claim pursuant 28 U.S.C. 23 § 1915(e)(2)(B). 24 IT IS SO ORDERED. 25 26 DATED: August 10, 2017 27 28 HON. GONZALO P. CURIEL United States District Judge -3- [17cv1587-GPC(MDD)]

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