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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MONTOREY DANYELL HARPER, Case No.: 3:17-cv-01982-GPC-BGS Plaintiff, 12 13 14 ORDER: v. UNITED STATES, ET AL, (1) DENYING MOTION TO PROCEED IFP [ECF No. 2] Defendants. 15 (2) SUA SPONTE DISMISSING COMPLAINT 16 17 18 INTRODUCTION 19 On September 27, 2017, Plaintiff Montorey Danyell Harper (“Plaintiff”), proceeding 20 pro se, initiated this action against defendants United States, United Nations, and NATO 21 (collectively “Defendants”). (ECF No. 1.) Plaintiff concurrently filed a motion to proceed 22 in forma pauperis (“IFP”). (ECF No. 2.) For the reasons set forth below, the Court 23 DENIES Plaintiff’s motion and sua sponte DISMISSES Plaintiff’s complaint for failure 24 to state a claim on which relief may granted. 25 // 26 // 27 // 28 // 1 3:17-cv-01982-GPC-BGS 1 2 DISCUSSION I. Motion for Leave to Proceed IFP 3 Any party instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $350.00. 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay 6 the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. 7 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Under 28 U.S.C. 8 § 1915(a), the Court may waive the filing fee if a party demonstrates an inability to pay by 9 submitting an affidavit reporting all assets of the individual. 28 U.S.C. § 1915(a). The 10 plaintiff must submit an affidavit demonstrating an inability to pay the filing fee, and the 11 affidavit must include a complete statement of the plaintiff’s assets. Id. § 1915(a)(1). When 12 a plaintiff moves to proceed IFP, the court first “grants or denies IFP status based on the 13 plaintiff’s financial resources alone and then independently determines whether to dismiss 14 the complaint” pursuant to 28 U.S.C. § 1915(e)(2) (“§ 1915(e)(2)”). Franklin v. Murphy, 15 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). 16 In his declaration accompanying the Motion to Proceed IFP, Plaintiff states that he 17 receives $2915 in disability payments and $1315 in other income, and thus has a monthly 18 income of $4230. (ECF No. 2 at 2). Plaintiff has $20.00 in cash and has a bank account 19 with $1495. (Id.) Plaintiff does not have any other significant assets such as real estate, 20 stocks, bonds, or securities. (Id.) Plaintiff has regular monthly expenses in the amount of 21 $4480—$2670 on housing, $800 on food, $700 on recreation and entertainment, $160 on 22 clothing and laundry, $50 for business operation expenses, and $100 on transportation. 23 (Id.) Plaintiff does not have any dependents, debts owed, or financial obligations. (Id.) 24 Based on Plaintiff’s representations, the Court finds that he is able to pay the filing 25 fee due to the existing funds in his bank account and because he can make acceptable 26 sacrifices to other expenses. Accordingly, the Court DENIES Plaintiff’s motion for leave 27 to proceed IFP. 28 // 2 3:17-cv-01982-GPC-BGS 1 II. Sua Sponte Screening 2 A complaint filed by any person proceeding IFP, pursuant to 28 U.S.C. § 1915(a), is 3 additionally subject to mandatory sua sponte screening. The Court must dismiss any 4 complaint if at any time the Court determines that it is “frivolous or malicious,” “fails to 5 state a claim on which relief may be granted,” or “seeks monetary relief from a defendant 6 who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)–(iii); Calhoun v. Stahl, 254 7 F.3d 845 (9th Cir. 2001) (per curiam); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 8 (en banc). 9 The requirements under 28 U.S.C. § 1915(e)(2)(B)(ii) are analogous to those under 10 Federal Rule of Civil Procedure (hereinafter “Rule”) 12(b)(6). Under Rule 8, a pleading 11 must contain “a short and plain statement of the claim showing that the pleader is entitled 12 to relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not give “detailed factual 13 allegations,” a plaintiff must plead sufficient facts that, if true, “raise a right to relief above 14 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). To state 15 a claim upon which relief may be granted “a complaint must contain sufficient factual 16 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially 18 plausible when the factual allegations permit “the court to draw the reasonable inference 19 that the defendant is liable for the misconduct alleged.” Id. In other words, “the non- 20 conclusory ‘factual content,’ and reasonable inferences from that content, must be 21 plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 22 572 F.3d 962, 969 (9th Cir. 2009). “Determining whether a complaint states a plausible 23 claim for relief will . . . be a context-specific task that requires the reviewing court to draw 24 on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. 25 In addition to the liberal pleading standards set out in Rule 8(a), a document filed 26 pro se is “to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). When the 27 plaintiff is appearing pro se, the court affords the plaintiff any benefit of the doubt. 28 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2001); Karim-Panahi, 839 F.2d 621, 623 3 3:17-cv-01982-GPC-BGS 1 (9th Cir. 1988). 2 As currently pleaded, Plaintiff’s complaint is subject to sua sponte dismissal because 3 it fails to state a claim upon which relief can be granted. Plaintiff’s allegations are 4 scattered, not comprehensible, unsupported by any factual allegations, and fail to state a 5 claim that is plausible. Plaintiff appears to claim that he was sent a threatening email from 6 Loyal Towing, who Plaintiff does not name as a Defendant. Further, Plaintiff appears to 7 allege that the “US and others” bear some responsibility in stopping this alleged threat. 8 (ECF No. 1 at 2.) As pleaded, the allegations in the Complaint are insufficient to put 9 Defendants on notice of the claims against them, as required by Federal Rule of Procedure 10 8. 11 Accordingly, as currently pled, Plaintiff’s complaint is subject to sua sponte 12 dismissal and the Court DISMISSES Plaintiff’s complaint for failing to state a claim 13 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 14 CONCLUSION 15 Based on the foregoing, the Court DENIES Plaintiff’s motion to proceed IFP and 16 sua sponte DISMISSES Plaintiff’s complaint without prejudice for failing to state a claim 17 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed to close this case. 18 IT IS SO ORDERED. 19 20 Dated: September 28, 2017 21 22 23 24 25 26 27 28 4 3:17-cv-01982-GPC-BGS

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