Marner v. Farmers Insurance et al

Filing 3

ORDER denying Motion to Proceed in forma pauperis and dismissing case without prejudice. Signed by District Judge Robert S. Huie on 8/30/2024. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ZACHARY MARNER,

Case No.: 24-cv-1469-RSH-BLM
Plaintiff,

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v.

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FARMERS INSURANCE, et al.,

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING CASE WITHOUT
PREJUDICE

Defendants.

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[ECF No. 2]

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On August 16, 2024, Plaintiff Zachary Marner, proceeding pro se, filed this civil
action against Farmers Insurance d/b/a Bristol West Insurance, Luis Alvarez, and David
Coddie. ECF No. 1. At the time of filing, Plaintiff did not prepay the civil filing fees
required by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed in Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. §1915(a). ECF No. 2.
I.

MOTION TO PROCEED IFP
Generally, all parties instituting a civil action in this court must pay a filing fee. See

28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may
authorize the commencement, prosecution or defense of any suit without payment of fees
if the plaintiff submits an affidavit, including a statement of all his or her assets, showing
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that he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP

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application is sufficient where it alleges that the affiant cannot pay the court costs and still

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afford the necessities of life.” Escobedo v. Applebees, 787 F. 3d 1226, 1234 (9th Cir. 2015).

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“[A] plaintiff seeking IFP status must allege poverty with some particularity, definiteness,

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and certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to

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proceed IFP in civil cases is within the sound discretion of the district court. Venerable v.

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Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted).

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In Plaintiff’s IFP application, he states that until last October, he had a monthly

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income of $10,700. He also states that over the past year his average monthly income has

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been $3,814.00, and that he currently has over $6,000 between cash and three checking

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accounts. Plaintiff resides in Aurora, Colorado, and has equity in a home subject to a

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mortgage. He owns a 2018 Subaru Outback outright, and is making payments on a 2022

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Subaru Forester. He states that he expects to receive no money or income of any kind going

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forward; but he claims monthly expenses for, among other things, a gym membership,

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subscriptions, continuing education, and regular expenses for the operation of a business.

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Based on the foregoing, the Court is not persuaded that Plaintiff lacks the funds to pay the

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filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. Plaintiff’s

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application to proceed IFP is denied. ECF No. 2.

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II.

SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)

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When reviewing an IFP application, the Court must also review the underlying

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complaint to determine whether it may proceed. A complaint filed by any person seeking

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to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua sponte review and

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dismissal should the Court determine, inter alia, that it is frivolous, malicious, or fails to

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state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); Calhoun v.

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Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B)

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are not limited to prisoners.”). “The standard for determining whether a plaintiff has failed

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to state a claim for relief under which one can be granted under 28 U.S.C. §

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1915(e)(2)(B)(ii) is the same as the [Federal Rule of Civil Procedure (“Rule”) 12(b)(6)]
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standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.

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2012). Although detailed factual allegations are not required, “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Determining whether a complaint states a

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plausible claim for relief [is] . . . a context-specific task that requires the court to draw on

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its judicial experience and common sense.” Id.

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The Complaint here is handwritten, and in places illegible. Plaintiff alleges that his

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2018 Subaru Outback was damaged in a flood on January 22, 2024, and that he thereafter

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filed a claim with his insurer, Bristol West. ECF No. 1 at 3. What occurred next is more

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difficult to follow. The Complaint appears to allege that his insurer first acknowledged, but

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then denied, the claim; stole and impounded the vehicle; attempted to have Plaintiff jailed

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or put in a mental institution, resulting in him being placed on a three-day mental health

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hold; sent Plaintiff to pick up his own vehicle in an area near the U.S.-Mexico border, in

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the hopes that Plaintiff would be killed there; damaged the vehicle’s electrical system, GPS,

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and radio; and denied that Plaintiff had paid his insurance premiums. Id. Plaintiff alleges

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violations of his constitutional and civil rights without further elaboration of how those

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rights were violated, and accuses his insurer of conspiring with and bribing officers of the

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U.S. Department of Homeland Security. Id. at 2. He seeks damages for, among other things,

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commissions he lost while subject to the three-day mental health hold; as well as moving

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expenses, although it is not clear to the Court why he is claiming these. Id. at 3-4. The

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Complaint does not appear to mention the individual defendants, Alvarez and Coddie.

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These allegations are lacking in the factual specificity that would allow the Court to

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conclude that he has plausibly alleged a claim for relief. Additionally, Plaintiff has not

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identified or specified a cause of action, which constitutional or civil rights of his have

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been violated, or a basis for federal jurisdiction. Accordingly, the Complaint is dismissed

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for failure to state a claim.

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III.

LEAVE TO AMEND

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“A district court should not dismiss a pro se complaint without leave to amend

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unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by

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amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v.

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Rockwood, 846 F.2d 1202, 1204 (9th Cir.1988)). The Court grants Plaintiff leave to file an

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amended complaint addressing the deficiencies identified herein.

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IV.

CONCLUSION

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For the above reasons, the Court DENIES Plaintiff’s motion to proceed IFP [ECF

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No. 2] and DISMISSES the Complaint with leave to amend. If Plaintiff wishes to proceed

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with this lawsuit, he must do the following within thirty (30) days of the date of this Order:

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(1) pay the filing fee, and (2) file an amended complaint. Plaintiff’s amended complaint

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must be complete by itself, without reference to his original pleading. If Plaintiff fails to

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do either of these, the Court will dismiss this action and close the case.

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IT IS SO ORDERED.
Dated: August 30, 2024

______________________
Hon. Robert S. Huie
United States District Judge

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