The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (Doc. 2)
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND WITHIN THIRTY DAYS (Doc. 7)
ORDER DENYING PLAINTIFF"S APPLICATION FOR INVESTIGATOR AND OTHER FUNDS (Doc. 8).
On November 24, 2008, pro se state prisoner Alfonso Arizmendi Ochoa ("Plaintiff") filed a complaint pursuant to 42 U.S.C. § 1983, against Shafter Police Officer Sgt. Casey Grogan ("Officer Grogan"). On November 24, 2008, Plaintiff also filed an application to proceed in forma pauperis ("IFP"). (Doc. 2). On December 1, 2008, the matter was reassigned and referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-303. (Doc. 4). On December 10, 2008, Plaintiff filed a first amended complaint. (Doc. 7). On December 10, 2008, Plaintiff also filed an application for funds to pay for "investigators, experts and others." (Doc. 8).
The Court finds that Plaintiff's IFP motion, wherein he reports that he is incarcerated, unemployed, and has no income or assets, satisfies the indigency requirements of 28 U.S.C. § 1915 and that Plaintiff is unable to pay the costs of commencing this action. Accordingly, Plaintiff's IFP motion will be granted.
The Court is required to screen a complaint brought by a prisoner seeking relief against a governmental agency or an officer or employee of a governmental agency, and to review a case filed in forma pauperis prior to service of process. 28 U.S.C. §1915A(a); 28 U.S.C. 1915(e). The Court must screen the complaint--in this case, Plaintiff's amended complaint--for sufficiency and dismiss the action if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) &(2); 28 U.S.C. § 1915 (e)(2)(B); see Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987 (citing Franklin v. Murphy, 745 F. 2d 1221, 1228 (9th Cir. 1984).
(1) Failure to State a Claim
A complaint should be dismissed for failure to state a claim "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229 (1984)(citing Conley v Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n., Inc., 651 F. 2d 1289, 1294 (9th Cir. 1981). Section 1915(e) of the Prison Litigation Reform Act requires a district court to dismiss an informa paupers complaint that fails to state a claim. 28 U.S.C. § 1915; Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). However, where a deficient complaint could possibly be cured by an amendment, the complaint must be dismissed with leave to amend. See Eldridge v. Block, 832 F. 2d 1132, 1135-1137 (9th Cir. 1987). When reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint, construe it in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
A complaint is legally frivolous when it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 324-325, 109 S.Ct. 1837 (1989); Franklin v. Murphy, 745 F. 2d at 1229. The Court may dismiss a complaint as frivolous if it is based on an indisputably meritless legal theory or merely fanciful factual allegations. Id. Frivolous factual allegations include those that are irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728 (1992). The Court must liberally construe a pro se pleading, however, it is not required to "accept as true unreasonable inferences or conclusory allegations cast in the form of factual allegations." Trevillion v. Tarantino, 2005 WL 2072098, at *3 (N.D. Cal. Aug. 23, 2005) (citations omitted).
The test for malice is a subjective one that requires the court to determine whether the plaintiff is proceeding in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U. S. 43, 46, 35 S.Ct. 236 (1915); see Wright v. Newsome, 795 F. 2d 964, 968 n. 1(11th Cir. 1986). A complaint may be inferred to be malicious if it suggests an intent to vex the defendants or abuse the judicial process, threatens violence or contains disrespectful references to the court, or contains untrue material allegations of fact or false statements made with knowledge and intent to deceive the court. Crisafi v. Holland, 655 F. 2d 1305, 1309 (D.C. Cir. 1981); Horsey v. Asher, 741 F. 2d 209, 212 (9th Cir. 1984).
(4) Section 1983 Amended Complaint
Plaintiff's first amended complaint seeks damages under 42 U.S.C. § 1983, which provides in pertinent part that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to ...