Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Heizelman v. McClure

September 20, 2010


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

BOP #20068-298


Plaintiffs, federal inmates currently incarcerated at the Metropolitan Correctional Center located in San Diego, California and proceeding pro se, filed a civil rights Complaint on July 22, 2010. Initially, neither Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP"). The Court issued an Order on August 3, 2010 requiring both Plaintiffs to either pay the entire initial civil filing fee or file Motions to Proceed IFP by August 30, 2010. See Aug. 3, 2010 Order at 2. That time has passed and only Plaintiff Heizelman has filed a Motion to Proceed IFP.

I. Dismissal of Plaintiff Brian McClure

Plaintiff Heizelman purports to bring this action on behalf of Plaintiff Brian McClure. However, because Plaintiff Heizelman is proceeding pro se, he has no authority to represent the legal interest of any other party. See Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also FED.R.CIV.P. 11(a) ("Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's original name, or if the party is not represented by an attorney, shall be signed by the party."). Moreover, Plaintiff McClure has not signed the Complaint, filed a Motion to Proceed IFP or indicated to the Court in any way that he is a party to this action. Thus, Plaintiff Brian McClure is DISMISSED from this action.

II. Motion to Proceed IFP

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus must pay a filing fee of $350. See 28 U.S.C. § 1914(a). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2).

Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2). The institution having custody of the prisoner must collect payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1). In this affidavit, Plaintiff claims that he has been unable to obtain a certified copy of his inmate trust account statement. Based upon this information, the Court GRANTS Plaintiff's Motion to Proceed IFP and assesses no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). The $350 balance shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) as set forth at the end of this Order.

III. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

The PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

In reviewing the Complaint, it is difficult to understand the underlying factual allegations that Plaintiff claims give rise to alleged constitutional violations. In his Complaint, Plaintiff alleges that he was "tortured" in a prison in Idaho for a number of years and contends that this torture has been "hidden by the Idaho Federal Courts and the Clerks there." See Compl. at 1. Plaintiff further claims that he was "throw[n] out of state to hide torture going on there." Id. at 2. Plaintiff makes a number of allegations on behalf of former Plaintiff Brian McClure. However, since Plaintiff McClure has been dismissed from this action, these claims have no relevancy in the action brought by Plaintiff Heizelman. A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the Court finds Plaintiff's claims to be frivolous under § 1915A because they lack even "an arguable basis either in law or in fact," and appear "fanciful," "fantastic," or "delusional." Neitzke, 490 U.S. at 325, 328. Thus, the Court dismisses the entirety of Plaintiff's Complaint as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A.

IV. Conclusion and Order

Good cause appearing, IT IS HEREBY ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.