Mason v. Calabrese et al

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. Signed by Judge Janis L. Sammartino on 3/7/2018. (IFP Packet Mailed)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROY MASON,

Case No.: 18-CV-368 JLS (JMA)
Plaintiff,

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ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS; AND (2) DIRECTING
U.S. MARSHAL TO EFFECT
SERVICE OF SUMMONS AND
COMPLAINT PURSUANT TO 28
U.S.C. § 1915(d) AND FED. R. CIV. P.
4(c)(3)

v.
MARK CALABRESE dba ROCKIE’S
FROZEN YOGURT, GORDON T
FROST TRUST (DECEASED), ALBERT
A FROST JR. TRUST, and DOES 1-10
INCLUSIVE,

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Defendants.
(ECF No. 2)

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Plaintiff Roy Mason filed an action pursuant to the Americans with Disabilities Act

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(“Compl.,” ECF No. 1), and a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to

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28 U.S.C. § 1915(a), (IFP Mot., ECF No. 2).

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IFP Motion

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All parties 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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18-CV-368 JLS (JMA)

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$400.1 See 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to

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

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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commencement of an action without the prepayment of fees if the party submits an

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affidavit, including a statement of assets, showing that he is unable to pay the required

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filing fee. 28 U.S.C. § 1915(a).

A federal court may authorize the

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In support of his IFP Motion, Plaintiff has submitted an affidavit of his financial

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status pursuant to 28 U.S.C. § 1915(a)(1) and Civil Local Rule 3.2. These statements show

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that Plaintiff receives $867.00 in monthly disability benefits, is not employed or married,

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and has no assets. (IFP Mot. 1–3.)2 Plaintiff represents that he has $980.00 in monthly

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expenses. Thus it appears that Plaintiff does not have the funds to pay the requisite filing

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fee. Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP.

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Initial Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A

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The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a)

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and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief

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may be granted,” or “seeks monetary relief against a defendant who is immune from relief.”

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28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

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(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.

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Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e)

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“not only permits but requires a district court to dismiss an in forma pauperis complaint

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that fails to state a claim”).

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As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2)

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mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915

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In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an
additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees,
District Court Misc. Fee Schedule) (eff. May 1, 2013). However, the additional $50 administrative fee is
waived if the plaintiff is granted leave to proceed IFP. Id.
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Pin citations refer to the CM/ECF numbers electronically stamped at the top of each page.
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18-CV-368 JLS (JMA)

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make and rule on its own motion to dismiss before directing the Marshal to effect service

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pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette

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v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal.

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Jan. 9, 2013).

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All complaints must contain a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a

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complaint states a plausible claim is context-specific, requiring the reviewing court to draw

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on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550

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U.S. at 556).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement of relief.”

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Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court

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must accept as true all allegations of material fact and must construe those facts in the light

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most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see

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also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152

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F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the

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language of Federal Rule of Civil Procedure 12(b)(6).”).

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“While factual allegations are accepted as true, legal conclusions are not.” Hoagland

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v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012)

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(citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a

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complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal,

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556 U.S. at 679).

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A prima facie claim under 42 U.S.C. § 12182(a) requires a plaintiff to show: (1) he

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is disabled; (2) the defendant’s business is a place of public accommodation; and (3)

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plaintiff was denied access because of his disability. Hernandez v. Polanco Enter., Inc.,
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19 F. Supp. 3d 918, 930 (N.D. Cal. 2013) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724,

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730 (9th Cir. 2007)). Here, Plaintiff alleges that he is mobility impaired and uses a

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wheelchair. (Compl. ¶ 10.) He alleges that Defendants’ business is open to the public and

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does not have a table that would fit his wheelchair. (Id. ¶ 11.) He further alleges that

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Defendants’ business has not cured its failure to provide full and equal access. (Id. ¶ 12.)

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The Court finds Plaintiff’s complaint sufficient to survive the “low threshold” for

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proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

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1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678.

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CONCLUSION
Good cause appearing, the Court:
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GRANTS Plaintiff’s IFP Motion, (ECF No. 2), pursuant to 28 U.S.C.

§ 1915(a).
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DIRECTS the Clerk of Court to issue a summons as to Plaintiff’s Complaint,

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(ECF No. 1), upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal

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Form 285 for the named Defendants. In addition, the Clerk is DIRECTED to provide

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Plaintiff with a certified copy of this Order and a certified copy of his Complaint, (ECF

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No. 1), and the summons so that he may serve the named Defendants. Upon receipt of this

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“IFP Package,” Plaintiff is DIRECTED to complete the Form 285 as completely and

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accurately as possible, and to return it to the United States Marshal according to the

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instructions provided by the Clerk in the letter accompanying the IFP package.

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3.

Upon receipt, the Court ORDERS the U.S. Marshal to serve a copy of the

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Complaint and summons upon the named Defendant as directed by Plaintiff on the USM

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Form 285. All costs of service will be advanced by the United States. See 28 U.S.C.

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§ 1915(d); Fed. R. Civ. P. 4(c)(3).

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4.

Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within

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the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).

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See 42 U.S.C. § 1997e(g) (noting that once the Court has conducted its sua sponte screening

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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus has made a preliminary
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18-CV-368 JLS (JMA)

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determination based on the face on the pleading alone that Plaintiff has a “reasonable

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opportunity to prevail on the merits,” the defendant is required to respond).

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5.

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by counsel, upon Defendants’ counsel, a copy of every further pleading or other document

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submitted for consideration by the Court. Plaintiff must include with the original paper to

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be filed with the Clerk, a certificate stating the manner in which a true and correct copy of

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the document was served on the Defendants, or counsel for Defendants, and the date of

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that service. Any paper received by the Court which has not been properly filed with the

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Clerk, or which fails to include a Certificate of Service, may be disregarded.

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Plaintiff SHALL SERVE upon the Defendants or, if appearance has been entered

IT IS SO ORDERED.
Dated: March 7, 2018

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