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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MONTOREY D. HARPER, Case No.: 17cv1634 BTM (BLM) Plaintiff, 12 13 v. 14 US DOJ, 15 Defendant. ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERS AND DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM 16 17 On August 14, 2017, Plaintiff filed a Complaint and a Motion to Proceed In 18 Forma Pauperis (“IFP”). For the reasons discussed below, the IFP Motion is 19 granted, and the Complaint is dismissed for failure to state a claim. 20 DISCUSSION 21 22 I. Motion to Proceed IFP 23 Upon review of Plaintiff’s affidavit in support of his IFP Motion, the Court finds 24 that Plaintiff has made a sufficient showing of inability to pay the filing fee required 25 to prosecute this action. Accordingly, Plaintiff’s IFP Motion is GRANTED. 26 27 28 II. Failure to State a Claim Although the Court will allow Plaintiff to proceed IFP, Plaintiff’s Complaint 1 17cv1634 BTM (BLM) 1 must be dismissed for failure to state a claim. The Court is under a continuing duty 2 to dismiss an IFP case whenever the Court determines that the action “fails to state 3 a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 4 Under Federal Rule of Civil Procedure 8(a), Plaintiff’s complaint must state 5 a claim for relief that contains: (1) “a short and plain statement of the grounds for 6 the court’s jurisdiction, unless the court already has jurisdiction and the claim 7 needs no new jurisdictional support; (2) a short and plain statement of the claim 8 showing that the pleader is entitled to relief; and (3) a demand for relief sought, 9 which may include relief in the alternative or different types of relief.” The factual 10 allegations “must be enough to raise a right to relief above the speculative level.” 11 Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Here, even under the most 12 liberal review, Plaintiff has failed to state enough facts to support a cognizable 13 claim for relief. The first page of the Complaint includes the following heading: 14 “Fashionable Assault.” However, the allegations under the heading are 15 unintelligible and fail to support a claim of assault. The following pages of the 16 Complaint appear to be letters written to the “State Bureau of Investigation” 17 requesting that it investigate “identity theft,” “religious discrimination,” and 18 “disability discrimination,” but these also fail to allege sufficient facts to support a 19 claim for relief. 20 Because Plaintiff is proceeding without counsel, and he has now been 21 provided with notice of his Complaint’s deficiencies, the Court will grant him leave 22 to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district 23 court should not dismiss a pro se complaint without leave to amend [pursuant to 24 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of 25 the complaint could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 26 F.3d 1202, 1212 (9th Cir. 2012)). 27 // 28 // 2 17cv1634 BTM (BLM) 1 CONCLUSION 2 For the reasons discussed above, Plaintiff’s motion to proceed in forma 3 pauperis is GRANTED, and Plaintiff’s Complaint is DISMISSED for failure to state 4 a claim. The Court GRANTS Plaintiff leave to file a First Amended Complaint 5 which cures the deficiencies noted above. 6 Amended Complaint, he must do so on or before September 22, 2017. Plaintiff’s 7 Amended Complaint must be complete by itself without reference to his original 8 pleading. Defendants not named and any claim not re-alleged in his Amended 9 Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach 10 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 11 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 12 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend 13 which are not re-alleged in an amended pleading may be “considered waived if not 14 repled.”). If Plaintiff fails to file an Amended Complaint, the Court will enter a final 15 Order dismissing this civil action based both on Plaintiff’s failure to state a claim 16 upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 17 his failure to prosecute in compliance with a court order requiring amendment. See 18 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 19 advantage of the opportunity to fix his complaint, a district court may convert the 20 dismissal of the complaint into dismissal of the entire action.”). If Plaintiff chooses to file a First 21 22 IT IS SO ORDERED. 23 Dated: August 28, 2017 24 25 26 27 28 3 17cv1634 BTM (BLM)

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