IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
May 19, 2005
JEREMY CURD, PLAINTIFF,
MJM MANAGING, DEFENDANT.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT
On February 8, 2005, Plaintiff Jeremy Curd filed a complaint against Defendant MJM Managing alleging a Title VII racial discrimination claim based on the fact that Defendant failed to hire him based upon his race or color. On April 26, 2005, the Court issued an Order Dismissing Complaint with Leave to Amend, noting that in his form complaint, Plaintiff checked the boxes indicating that his claim is that Defendant failed to employ him based on his race or color, but in the complaint he had written phrases suggesting that Defendant owed him a pay check, which contradicted his claim that Defendant failed to employ him. The Court also pointed out that the Equal Employment Opportunity Commission (EEOC) right-to-sue letter that Plaintiff submitted to show his federal claim had been exhausted did not indicate the nature of the EEOC charge filed by Plaintiff against Defendant. The Court dismissed Plaintiff's complaint with leave to amend for Plaintiff to add specific allegations indicating how Defendant discriminated against him on the basis of his race or color and to attach his EEOC charge evidencing that he filed this same discrimination charge with the EEOC.
On May 12, 2005, Plaintiff filed a document titled, "Notice of Motion Amend Complaint Short Appeal," which the Court construes as Plaintiff's first amended complaint (FAC). The FAC is mostly unintelligible. On the first page of the complaint, the Court has picked out phrases referencing gender and race discrimination, but they seem to be directed at an entity called W.T. Capital, and not the named Defendant in this complaint. In another paragraph, the complaint addresses the "dignity of a law firm." On the second page of the complaint, Plaintiff focuses on Defendant MJM Management, alleging, "Plaintiff states race discrimination motives against MJM Managing Company failure [sic] to employ [unintelligible] because terminating do have region for terminating Plaintiff was performing in ordinance and regulation for probationary employees or a U.S. government contract; Plaintiff has suffered discrimination employment action, such as a discharge; some how the circumstances suggesting discriminatory motives [unintelligible] with managing U.S. military employees and these government managing secret grids of state the conclusion for relief of damages and assistments [sic] govern." In the next section, titled "Motives A-C," Plaintiff alleges that on August 4, 2004, on August 6, 2004 and on November 1, 2004, he was denied employment because he was denied an employment application by a security officer, an HR manager, and a receptionist. Also, on November 1, 2004, the HR manager called the police and demanded that Plaintiff be placed into custody for trespassing. The next section of the complaint seems to focus on a different situation involving the San Francisco Redevelopment Agency, KTB Managing and Curd and Curd Enterprises.
The FAC is unintelligible and does not appear to respond to the April 26, 2005 Order Dismissing Complaint With Leave to Amend.
The Ninth Circuit has indicated that leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) is properly granted only when the plaintiff has demonstrated poverty and has presented a claim that is not factually or legally frivolous within the definition of § 1915(e)(2)(B).*fn1 O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). Thus, the court "may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Id. (quoting Reece v. Washington, 310 F.2d 139, 140 (9th Cir. 1962); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.), cert. denied, 382 U.S. 896 (1965)). An in forma pauperis complaint is frivolous if it has "no arguable basis in fact or law." O'Loughlin, 920 F.2d at 617; Tripati, 821 F.2d at 1379; Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
The Supreme Court holds that dismissal prior to service under 28 U.S.C. § 1915(e)(2)(B) is appropriate where no legal interest is implicated, i.e., the claim is premised on a meritless legal theory, or clearly lacking any factual basis. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Section 1915(e)(2)(B) accords judges the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 34 (1992). Because a dismissal pursuant to § 1915(e)(2)(B) is not a dismissal on the merits, but rather an exercise of the court's discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. Id.
Plaintiff's FAC fails to allege any facts that would state a claim against Defendant. For this reason, the FAC must be dismissed and Plaintiff's request to proceed IFP is denied.
For the foregoing reasons, Plaintiff's request to proceed in forma pauperis is denied and his complaint is dismissed without prejudice to refiling as a paid complaint.