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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROY MASON, Case No.: 18-CV-368 JLS (JMA) Plaintiff, 12 13 14 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, 15 16 17 18 Defendants. (ECF No. 2) 19 20 Plaintiff Roy Mason filed an action pursuant to the Americans with Disabilities Act 21 (“Compl.,” ECF No. 1), and a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 22 28 U.S.C. § 1915(a), (IFP Mot., ECF No. 2). 23 IFP Motion 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 27 28 1 18-CV-368 JLS (JMA) 1 $400.1 See 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 5 commencement of an action without the prepayment of fees if the party submits an 6 affidavit, including a statement of assets, showing that he is unable to pay the required 7 filing fee. 28 U.S.C. § 1915(a). A federal court may authorize the 8 In support of his IFP Motion, Plaintiff has submitted an affidavit of his financial 9 status pursuant to 28 U.S.C. § 1915(a)(1) and Civil Local Rule 3.2. These statements show 10 that Plaintiff receives $867.00 in monthly disability benefits, is not employed or married, 11 and has no assets. (IFP Mot. 1–3.)2 Plaintiff represents that he has $980.00 in monthly 12 expenses. Thus it appears that Plaintiff does not have the funds to pay the requisite filing 13 fee. Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP. 14 Initial Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A 15 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 16 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 17 may be granted,” or “seeks monetary relief against a defendant who is immune from relief.” 18 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 19 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 20 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) 21 “not only permits but requires a district court to dismiss an in forma pauperis complaint 22 that fails to state a claim”). 23 As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2) 24 mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915 25 26 27 28 1 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. 2 Pin citations refer to the CM/ECF numbers electronically stamped at the top of each page. 2 18-CV-368 JLS (JMA) 1 make and rule on its own motion to dismiss before directing the Marshal to effect service 2 pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette 3 v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal. 4 Jan. 9, 2013). 5 All complaints must contain a “short and plain statement of the claim showing that 6 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 8 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 10 complaint states a plausible claim is context-specific, requiring the reviewing court to draw 11 on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550 12 U.S. at 556). 13 “When there are well-pleaded factual allegations, a court should assume their 14 veracity, and then determine whether they plausibly give rise to an entitlement of relief.” 15 Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court 16 must accept as true all allegations of material fact and must construe those facts in the light 17 most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see 18 also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152 19 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the 20 language of Federal Rule of Civil Procedure 12(b)(6).”). 21 “While factual allegations are accepted as true, legal conclusions are not.” Hoagland 22 v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012) 23 (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a 24 complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal, 25 556 U.S. at 679). 26 A prima facie claim under 42 U.S.C. § 12182(a) requires a plaintiff to show: (1) he 27 is disabled; (2) the defendant’s business is a place of public accommodation; and (3) 28 plaintiff was denied access because of his disability. Hernandez v. Polanco Enter., Inc., 3 18-CV-368 JLS (JMA) 1 19 F. Supp. 3d 918, 930 (N.D. Cal. 2013) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724, 2 730 (9th Cir. 2007)). Here, Plaintiff alleges that he is mobility impaired and uses a 3 wheelchair. (Compl. ¶ 10.) He alleges that Defendants’ business is open to the public and 4 does not have a table that would fit his wheelchair. (Id. ¶ 11.) He further alleges that 5 Defendants’ business has not cured its failure to provide full and equal access. (Id. ¶ 12.) 6 The Court finds Plaintiff’s complaint sufficient to survive the “low threshold” for 7 proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 8 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. 9 10 11 12 13 CONCLUSION Good cause appearing, the Court: 1. GRANTS Plaintiff’s IFP Motion, (ECF No. 2), pursuant to 28 U.S.C. § 1915(a). 2. DIRECTS the Clerk of Court to issue a summons as to Plaintiff’s Complaint, 14 (ECF No. 1), upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal 15 Form 285 for the named Defendants. In addition, the Clerk is DIRECTED to provide 16 Plaintiff with a certified copy of this Order and a certified copy of his Complaint, (ECF 17 No. 1), and the summons so that he may serve the named Defendants. Upon receipt of this 18 “IFP Package,” Plaintiff is DIRECTED to complete the Form 285 as completely and 19 accurately as possible, and to return it to the United States Marshal according to the 20 instructions provided by the Clerk in the letter accompanying the IFP package. 21 3. Upon receipt, the Court ORDERS the U.S. Marshal to serve a copy of the 22 Complaint and summons upon the named Defendant as directed by Plaintiff on the USM 23 Form 285. All costs of service will be advanced by the United States. See 28 U.S.C. 24 § 1915(d); Fed. R. Civ. P. 4(c)(3). 25 4. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within 26 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 27 See 42 U.S.C. § 1997e(g) (noting that once the Court has conducted its sua sponte screening 28 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus has made a preliminary 4 18-CV-368 JLS (JMA) 1 determination based on the face on the pleading alone that Plaintiff has a “reasonable 2 opportunity to prevail on the merits,” the defendant is required to respond). 3 5. 4 by counsel, upon Defendants’ counsel, a copy of every further pleading or other document 5 submitted for consideration by the Court. Plaintiff must include with the original paper to 6 be filed with the Clerk, a certificate stating the manner in which a true and correct copy of 7 the document was served on the Defendants, or counsel for Defendants, and the date of 8 that service. Any paper received by the Court which has not been properly filed with the 9 Clerk, or which fails to include a Certificate of Service, may be disregarded. 10 11 Plaintiff SHALL SERVE upon the Defendants or, if appearance has been entered IT IS SO ORDERED. Dated: March 7, 2018 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 18-CV-368 JLS (JMA)

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