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Sharon Jacob v. Oscar Flagg

December 1, 2010

SHARON JACOB,
PLAINTIFF,
v.
OSCAR FLAGG, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER:

GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, [Doc. No.2]

SUA SPONTE DISMISSING COMPLAINT UNDER 28 U.S.C. § 1915(e)(2)(b) [Doc. No. 1]

Plaintiff Sharon Jacob, proceeding pro se, initiated this action by filing a Complaint against Defendants Oscar B. Flagg and Franco Simone & Associates ("Defendants"). [Doc. No. 1.] Plaintiff contemporaneously filed a motion to proceed in forma pauperis ("IFP"). [Doc. No. 2.]

I.

MOTION TO PROCEED IFP

A party 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). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).

Plaintiff's form affidavit states Plaintiff is employed by the San Diego Unified School District. Plaintiff states "N[ot] A[pplicable]"in response to the question as to the amount of take-home salary, wages and pay period. Plaintiff has $40 in a checking account, and owns outright a Ford Windstar. Plaintiff does not own any other assets, and lists debts in the amount of approximately $16,015. Plaintiff lists her husband and two children as dependent upon her for support. Finally, Plaintiff states the source of funds she uses to pay her day-to-day expenses comes from her participation in CalWorks, medical and food stamp programs. [Doc. No. 2.]

The Court must employ "[t]he same even-handed care . . . to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Here, the Court finds Plaintiff's affidavit sufficiently shows Plaintiff is unable to pay the fees required to maintain this action. It appears that although Plaintiff works for the San Diego Unified School District, she is not compensated directly by the school district, but rather received funds through the state CalWorks program, a welfare program that provides cash aid and services to eligible families. Additionally, Plaintiff has no additional assets other than the $40 in her checking account and her vehicle, and has three people that are dependent upon her for her support. In light of the aforementioned factors, the Court GRANTS the motion to proceed IFP under 28 U.S.C. § 1915(a).

II.

SCREENING PURSUANT TO 28U.S.C.§ 1915(e)(2)(b)

"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). The standard used to evaluate the complaint is a liberal one, particularly when a pro se Plaintiff filed the action. See Estelle v. Gamble, 429 U.S. 97, 97 (1976).

However, even a "liberal interpretation ... may not supply elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff"s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. ___ , 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the ...


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