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Lundy v. Colmenero

August 13, 2008

ROBERT LUNDY, PLAINTIFF,
v.
ALEX AND JANET COLMENERO, ET. AL., DEFENDANT.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER (1) GRANTING MOTION TO PROCEED IN FORMA MOTION FOR THE APPOINTMENT OF COUNCIL; (2) DENYING AMEND FOR FAILURE TO PAUPERIS; (3) DENYING MOTION FOR TEMPORARY RESTRAINING ORDER; AND (4) DISMISSING COMPLAINT WITH LEAVE TO STATE A CLAIM

On June 27, 2008, Robert Lundy ("Plaintiff"), a non-prisoner proceeding pro se, filed this civil rights action against Defendants Alex and Janet Colmenero and the Superior Court of San Diego. Plaintiff has also submitted a motion to proceed in forma pauperis, a motion for the appointment of counsel, and a motion for a temporary restraining order. For the reasons set forth below, the court GRANTS the motion to proceed in forma pauperis, DENIES the motion for the appointment of counsel, DENIES the motion for a temporary restraining order and DISMISSES the civil rights complaint with leave to amend.

I. Background

The history of Plaintiff's case and his exact objectives in this action are unclear, but from what can be discerned, the relevant allegations are as follows: Plaintiff seems to allege a claim under 42 U.S.C. § 1983 against all defendants. See Compl. at pg.1. Plaintiff never explicitly mentions section 1983, but he appears to claim that Defendant Superior Court violated his equal protection and due process rights by racially discriminating against him, allowing violations of court orders, and depriving him of his parental right to have custody of his daughter. See Compl. at pg. 1-2. Plaintiff claims that Defendants Alex and Janet Colmenero, ostensibly the foster parents of Plaintiff's daughter, are violating his due process rights by refusing to return Plaintiff's daughter to him in violation of court orders to do so. See Compl. at pg. 1. Plaintiff also apparently brings a 42 U.S.C. § 1985(3) claim against Defendants Alex and Janet Colmenero for violating Plaintiff's due process rights by conspiring to retain physical custody of Plaintiff's daughter in violation of court orders. See Compl. at pg.1-2. The body of the complaint does not contain an explicit mention of section 1985(3), but Plaintiff did list it as the cause of action on the civil cover sheet. Plaintiff seeks monetary damages in the amount of $5,000,000 and an injunction giving him custody of his daughter. See Compl. at pg. 1-2.

II. Discussion

1. Motion to Proceed in Forma Pauperis

A. Legal Standard

There is no constitutional right to proceed in forma pauperis. Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999). However, the court may authorize the commencement of an action without prepayment of fees or securities by a person who submits an affidavit showing that he or she cannot afford to pay such fees or give such securities. 28 U.S.C. 1915(a)(1); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984).

B. Analysis

Plaintiff's motion to proceed in forma pauperis states that he earns $938 bi-monthly and has no sources of income other than his job with San Diego Scenic Tours. Plaintiff also has substantial debt. He owes $12,000 to Capital One, $12,000 to Merrick Bank, and $975 to Houston Apartments. Plaintiff also owes $15,000 in child support. In addition, Plaintiff claims that his daughter is dependent on him for support. Having considered these facts, the court GRANTS Plaintiff's motion to proceed in forma pauperis.

2. Failure to State a Claim

A. Legal Standard

Courts must, sua sponte, dismiss a plaintiff's action if the complaint is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In determining whether or not a plaintiff has stated a claim, "the issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As such, the court must accept the complaint's allegations as true. See Jenkins v. McKeithen, 395 ...


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