Harper v. US et al

Filing 3

ORDER Denying 2 Motion for Leave to Proceed in Forma Pauperis; Sua Sponte Dismissing Complaint. Signed by Judge Gonzalo P. Curiel on 9/28/17. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MONTOREY DANYELL HARPER,

Case No.: 3:17-cv-01982-GPC-BGS

Plaintiff,

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ORDER:

v.
UNITED STATES, ET AL,

(1) DENYING MOTION TO
PROCEED IFP [ECF No. 2]

Defendants.

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(2) SUA SPONTE DISMISSING
COMPLAINT

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INTRODUCTION

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On September 27, 2017, Plaintiff Montorey Danyell Harper (“Plaintiff”), proceeding

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pro se, initiated this action against defendants United States, United Nations, and NATO

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(collectively “Defendants”). (ECF No. 1.) Plaintiff concurrently filed a motion to proceed

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in forma pauperis (“IFP”). (ECF No. 2.) For the reasons set forth below, the Court

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DENIES Plaintiff’s motion and sua sponte DISMISSES Plaintiff’s complaint for failure

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to state a claim on which relief may granted.

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3:17-cv-01982-GPC-BGS

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DISCUSSION
I.

Motion for Leave to Proceed IFP

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Any party instituting any civil action, suit or proceeding in a district court of the

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

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$350.00. 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay

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the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Under 28 U.S.C.

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§ 1915(a), the Court may waive the filing fee if a party demonstrates an inability to pay by

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submitting an affidavit reporting all assets of the individual. 28 U.S.C. § 1915(a). The

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plaintiff must submit an affidavit demonstrating an inability to pay the filing fee, and the

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affidavit must include a complete statement of the plaintiff’s assets. Id. § 1915(a)(1). When

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a plaintiff moves to proceed IFP, the court first “grants or denies IFP status based on the

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plaintiff’s financial resources alone and then independently determines whether to dismiss

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the complaint” pursuant to 28 U.S.C. § 1915(e)(2) (“§ 1915(e)(2)”). Franklin v. Murphy,

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745 F.2d 1221, 1226 n.5 (9th Cir. 1984).

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In his declaration accompanying the Motion to Proceed IFP, Plaintiff states that he

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receives $2915 in disability payments and $1315 in other income, and thus has a monthly

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income of $4230. (ECF No. 2 at 2). Plaintiff has $20.00 in cash and has a bank account

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with $1495. (Id.) Plaintiff does not have any other significant assets such as real estate,

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stocks, bonds, or securities. (Id.) Plaintiff has regular monthly expenses in the amount of

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$4480—$2670 on housing, $800 on food, $700 on recreation and entertainment, $160 on

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clothing and laundry, $50 for business operation expenses, and $100 on transportation.

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(Id.) Plaintiff does not have any dependents, debts owed, or financial obligations. (Id.)

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Based on Plaintiff’s representations, the Court finds that he is able to pay the filing

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fee due to the existing funds in his bank account and because he can make acceptable

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sacrifices to other expenses. Accordingly, the Court DENIES Plaintiff’s motion for leave

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to proceed IFP.

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II.

Sua Sponte Screening

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A complaint filed by any person proceeding IFP, pursuant to 28 U.S.C. § 1915(a), is

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additionally subject to mandatory sua sponte screening. The Court must dismiss any

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complaint if at any time the Court determines that it is “frivolous or malicious,” “fails to

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state a claim on which relief may be granted,” or “seeks monetary relief from a defendant

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who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)–(iii); Calhoun v. Stahl, 254

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F.3d 845 (9th Cir. 2001) (per curiam); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)

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(en banc).

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The requirements under 28 U.S.C. § 1915(e)(2)(B)(ii) are analogous to those under

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Federal Rule of Civil Procedure (hereinafter “Rule”) 12(b)(6). Under Rule 8, a pleading

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must contain “a short and plain statement of the claim showing that the pleader is entitled

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to relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not give “detailed factual

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allegations,” a plaintiff must plead sufficient facts that, if true, “raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). To state

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a claim upon which relief may be granted “a complaint must contain sufficient factual

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

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially

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plausible when the factual allegations permit “the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Id. In other words, “the non-

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conclusory ‘factual content,’ and reasonable inferences from that content, must be

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plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). “Determining whether a complaint states a plausible

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claim for relief will . . . be a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

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In addition to the liberal pleading standards set out in Rule 8(a), a document filed

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pro se is “to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). When the

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plaintiff is appearing pro se, the court affords the plaintiff any benefit of the doubt.

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Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2001); Karim-Panahi, 839 F.2d 621, 623
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3:17-cv-01982-GPC-BGS

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(9th Cir. 1988).

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As currently pleaded, Plaintiff’s complaint is subject to sua sponte dismissal because

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it fails to state a claim upon which relief can be granted. Plaintiff’s allegations are

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scattered, not comprehensible, unsupported by any factual allegations, and fail to state a

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claim that is plausible. Plaintiff appears to claim that he was sent a threatening email from

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Loyal Towing, who Plaintiff does not name as a Defendant. Further, Plaintiff appears to

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allege that the “US and others” bear some responsibility in stopping this alleged threat.

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(ECF No. 1 at 2.) As pleaded, the allegations in the Complaint are insufficient to put

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Defendants on notice of the claims against them, as required by Federal Rule of Procedure

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8.

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Accordingly, as currently pled, Plaintiff’s complaint is subject to sua sponte

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dismissal and the Court DISMISSES Plaintiff’s complaint for failing to state a claim

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pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

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CONCLUSION

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Based on the foregoing, the Court DENIES Plaintiff’s motion to proceed IFP and

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sua sponte DISMISSES Plaintiff’s complaint without prejudice for failing to state a claim

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pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.

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Dated: September 28, 2017

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3:17-cv-01982-GPC-BGS