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Hollins v. Pacific Gas & Electric Co.

February 5, 2009

GILBERT HOLLINS, PLAINTIFF,
v.
PACIFIC GAS & ELECTRIC COMPANY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS FINDINGS AND RECOMMENDATIONREGARDING DISMISSAL OF ACTION

(Document 2)

I. MOTION TO PROCEED IN FORMA PAUPERIS

By application filed January 20, 2009, Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has submitted a declaration that makes the showing required by § 1915 (a). Accordingly, the request to proceed in forma pauperis IS GRANTED. 28 U.S.C. § 1915 (a).

II. SCREENING THE COMPLAINT

A. Introduction

Plaintiff Gilbert Hollins ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant complaint on January 20, 2009. In the complaint, Plaintiff alleges that Pacific Gas & Electric Company ("Defendant") willfully violated Plaintiff's "civil rights and civil liberty for seven months" and caused unspecified personal injury by failing to provide electric and gas utility services to Plaintiff at 2852 Calimyrna Avenue in Clovis, California. Plaintiff complains Defendant's refusal is improper because he is a third-party and therefore is not responsible for unpaid utilities previously provided to another at that property. Plaintiff seeks monetary relief in the total sum of $7,640,000, and further seeks an order of this court directing Defendant to provide utility services. Upon a review of the complaint, this court recommends that the action be dismissed without leave to amend.

B. Discussion

1. Screening Standard

In cases where plaintiff is proceeding in forma pauperis, the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question (Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976)), construe the pro se pleadings liberally in the light most favorable to the Plaintiff (Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)), and resolve all doubts in the Plaintiff's favor (Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)).

Federal Rules of Civil Procedure, rule 8(a) provides:

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds for jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. As stated above, a complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which the Defendant engaged in that support Plaintiff's claim. Id. Although a complaint need not outline all elements of a claim, it must be possible to infer from the allegations that all elements exist and that there is entitlement to relief under some viable legal theory. Lewis v. ACB Business Service, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998). "A trial court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6).... Such dismissal may be made without notice where the claimant cannot possibly win relief." Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987); see Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir. 1981). Sua sponte dismissal may be made before process is served on Defendants. Neitzke v. Williams, 490 U.S. 319, 324 (1989) (dismissals under 28 U.S.C. § 1915(d) are often made sua sponte); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984) (court may dismiss frivolous in forma pauperis action sua sponte prior to service of process on Defendants).

If a Plaintiff proceeds in forma pauperis, the court shall dismiss a case at any time if the court determines it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See, 28 U.S.C. § 1915(e); 2 Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (2006) Attacking the Pleadings, ¶ 9:226.1, at 9-69. A claim is legally frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d at 1228. A federal court may dismiss a claim as ...


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