Harper et al v. US DOJ

Filing 3

ORDER Granting 2 Motion for Leave to Proceed in Forma Pauperis and Dismissing Complaint for Failure to State a Claim. The Court Grants Plaintiff leave to file a First Amended Complaint which cures the deficiencies noted above. If Plaintiff chooses to file a First Amended Complaint, he must do so on or before 9/22/2017. If Plaintiff fails to file an Amended Complaint, the Court will enter a final Order dismissing this civil action. Signed by Judge Barry Ted Moskowitz on 8/28/2017. (All non-registered users served via U.S. Mail Service)(mxn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MONTOREY D. HARPER,

Case No.: 17cv1634 BTM (BLM)
Plaintiff,

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v.

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US DOJ,

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Defendant.

ORDER GRANTING MOTION TO
PROCEED IN FORMA
PAUPERS AND DISMISSING
COMPLAINT FOR FAILURE TO
STATE A CLAIM

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On August 14, 2017, Plaintiff filed a Complaint and a Motion to Proceed In

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Forma Pauperis (“IFP”). For the reasons discussed below, the IFP Motion is

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granted, and the Complaint is dismissed for failure to state a claim.

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DISCUSSION

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I. Motion to Proceed IFP

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Upon review of Plaintiff’s affidavit in support of his IFP Motion, the Court finds

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that Plaintiff has made a sufficient showing of inability to pay the filing fee required

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to prosecute this action. Accordingly, Plaintiff’s IFP Motion is GRANTED.

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II. Failure to State a Claim
Although the Court will allow Plaintiff to proceed IFP, Plaintiff’s Complaint
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17cv1634 BTM (BLM)

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must be dismissed for failure to state a claim. The Court is under a continuing duty

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to dismiss an IFP case whenever the Court determines that the action “fails to state

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a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Under Federal Rule of Civil Procedure 8(a), Plaintiff’s complaint must state

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a claim for relief that contains: (1) “a short and plain statement of the grounds for

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the court’s jurisdiction, unless the court already has jurisdiction and the claim

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needs no new jurisdictional support; (2) a short and plain statement of the claim

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showing that the pleader is entitled to relief; and (3) a demand for relief sought,

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which may include relief in the alternative or different types of relief.” The factual

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allegations “must be enough to raise a right to relief above the speculative level.”

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Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Here, even under the most

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liberal review, Plaintiff has failed to state enough facts to support a cognizable

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claim for relief. The first page of the Complaint includes the following heading:

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“Fashionable Assault.” However, the allegations under the heading are

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unintelligible and fail to support a claim of assault. The following pages of the

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Complaint appear to be letters written to the “State Bureau of Investigation”

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requesting that it investigate “identity theft,” “religious discrimination,” and

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“disability discrimination,” but these also fail to allege sufficient facts to support a

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claim for relief.

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Because Plaintiff is proceeding without counsel, and he has now been

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provided with notice of his Complaint’s deficiencies, the Court will grant him leave

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to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district

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court should not dismiss a pro se complaint without leave to amend [pursuant to

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28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of

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the complaint could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698

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F.3d 1202, 1212 (9th Cir. 2012)).

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//

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//
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17cv1634 BTM (BLM)

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CONCLUSION

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For the reasons discussed above, Plaintiff’s motion to proceed in forma

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pauperis is GRANTED, and Plaintiff’s Complaint is DISMISSED for failure to state

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a claim. The Court GRANTS Plaintiff leave to file a First Amended Complaint

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which cures the deficiencies noted above.

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Amended Complaint, he must do so on or before September 22, 2017. Plaintiff’s

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Amended Complaint must be complete by itself without reference to his original

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pleading. Defendants not named and any claim not re-alleged in his Amended

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Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach

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Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

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(“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693

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F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend

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which are not re-alleged in an amended pleading may be “considered waived if not

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repled.”). If Plaintiff fails to file an Amended Complaint, the Court will enter a final

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Order dismissing this civil action based both on Plaintiff’s failure to state a claim

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upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

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his failure to prosecute in compliance with a court order requiring amendment. See

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Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take

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advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

If Plaintiff chooses to file a First

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IT IS SO ORDERED.

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Dated: August 28, 2017

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