The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 9] (2) SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM; and (3) DENYING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AS MOOT [Doc. No. 10]
On October 26, 2010, Plaintiff Lisa Anderson and her daughter, Elise J. Anderson, filed a pro se complaint alleging intentional discrimination by public social services [Doc. No. 1], along with a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. Only Lisa Anderson signed the complaint. On October 27, 2010, the Court denied Plaintiff's Motion to Proceed IFP because the Court could not determine whether Plaintiff was indigent within the meaning of the IFP statute, and informed Plaintiff Lisa that she does not have authority to appear as an attorney on her daughter Elise's behalf [Doc. No. 4]. On November 16, 2010, Plaintiff Lisa Anderson filed a First Amended Complaint [Doc. No. 6], naming only herself as a plaintiff, along with a second Motion to Proceed IFP [Doc. No. 7]. The Court again denied Plaintiff's motion on December 6, 2010, finding that Plaintiff was not indigent with the meaning of the IFP statute based on the information presented [Doc. No. 7]. Plaintiff was given until January 10, 2011, to submit an amended motion to proceed IFP or pay the required filing fee. On January 10, 2011, Plaintiff submitted a third Motion to Proceed IFP [Doc. No. 9], along with a motion for leave to file a Second Amended Complaint [Doc. No. 10].
For the reasons set forth below, the Court GRANTS Plaintiff's motion for leave to proceed IFP, and DISMISSES Plaintiff's complaint without prejudice and with leave to amend.
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). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 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).
When presented with an application to proceed in forma pauperis, a court must first determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See Franklin v. Murphy, 745 F.2d 1221, 1226 n. 5 (9th Cir. 1984). Section 1915(a) does not require an applicant to demonstrate absolute destitution. See Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).
On January 10, 2011, Plaintiff filed a third Motion to Proceed IFP, which indicates that her monthly expenses are approximately equal to her monthly income of $929. In addition to rent and storage fees, Plaintiff has now indicated that her monthly food expenses total $180, and that bills and miscellaneous expenses total approximately $100 per month, bringing her monthly expenses to approximately $913. The Court finds this new information cures the deficiencies outlined in the Court's December 6, 2010 Order, and that Plaintiff has now satisfied the IFP requirements. Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP [Doc. No. 9].
SCREENING PURSUANT TO 28U.S.C.§1915(E)(2)
When a plaintiff seeks to proceed IFP, the complaint is subject to mandatory screening and the Court must order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.").
"[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). In addition, the Court has a duty to liberally construe a pro se's pleadings. Id. In giving liberal interpretation to a pro se complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). For the reasons set forth below, the Court concludes Plaintiff's First Amended Complaint ("FAC") fails to state a claim upon which relief may be granted.
II. Summary of Plaintiff's Complaint
Plaintiff's FAC is difficult to comprehend, and it is unclear when
many of the alleged events occurred because they are undated and are
not in chronological order. However, Plaintiff's FAC appears to
describe numerous encounters over the course of approximately 10 years
between herself, her daughter Elise Janine Anderson,*fn1
employees of the San Diego Regional Center ("SDRC"), Walden's
Family Mental Health Services ("Walden's"), the Office of Human Rights
and Advocacy ("OHRA"), and Elise's foster parents. Based on these
events, Plaintiff purports to allege that she was discriminated
against by Defendants on the basis of her race, mental disability, and
gender [Doc. No. 6].
The FAC primarily describes Defendants' alleged interference with Plaintiff's desire to see, talk to, and care for her daughter Elise. For example, the FAC indicates that in 1999, Elise was placed in a group home while in state custody, and Plaintiff was able to visit Elise until a group of social workers made deals to "cut out" Plaintiff from her daughter's life [FAC ¶¶ 1, 4--5]. Additionally, Plaintiff alleges that on one occasion she attempted to pray with Elise and social workers subsequently threatened to call the police if Plaintiff did not leave the group home facility [FAC ¶ 11]. Plaintiff alleges that employees of SDRC interrupted prayers on other occasions, terminated visits with Plaintiff's daughter without Plaintiff's knowledge, monitored phone calls, and forced Elise to hang up on Plaintiff on one occasion*fn2 [FAC ¶¶ 10, 13, 15--18, 22]. The FAC also alleges that in 2004, Defendant Estella Gonzales disconnected Elise's phone and may have interfered with Plaintiff's ability to visit Elise [FAC ¶ 43]. Additionally, while Plaintiff was talking to Elise on the phone on one occasion, she could hear the "sound of a clamorous pan" and Defendants Estella and Ruben in the background [FAC ¶ 47]. Similarly, the FAC alleges Defendants Lourdes and Jesse tried to prevent ...