UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 19, 2011
MARY JANE AUSTIN,
ST. VINCENT DE PAUL, FATHER JOE'S VILLAGE, AND HUD, DEFENDANTS.
The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS; (2) SUA SPONTE DISMISSING COMPLAINT
Plaintiff commenced this action on April 27, 2011, alleging her civil rights were violated. [Doc. No. 1.] Along with her Complaint, Plaintiff submitted a Motion to Proceed In Forma Pauperis. Having considered Plaintiff's request, Court GRANTS Plaintiff leave to proceed in forma pauperis, but DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint.
I. MOTION TO PROCEED IN FORMA PAUPERIS
All parties instituting any civil action, suit, or proceeding in a district court, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). However, an action may proceed despite failure to pay the filing fee if the party is granted an in forma pauperis ("IFP") status. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). TheCourt may grant IFP status to any party who demonstrates that he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a).
In the present case, having reviewed Plaintiff's motion and declaration in support of motion, the Court finds that Plaintiff has made a sufficient showing of inability to pay the required filing fees. See Rodriguez, 169 F.3d at 1177. Accordingly, good cause appearing, the Court GRANTS Plaintiff leave to proceed in forma pauperis.
II. INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
After granting IFP status, the Court must dismiss the case if the case "fails to state a claim on which relief may be granted" or is " frivolous." 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim). 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 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000)). Where a complaint fails to state "any constitutional or statutory right that was violated, nor asserts any basis for federal subject matter jurisdiction," there is no "arguable basis in law" under Neitzke and the court on its own initiative may decline to permit the plaintiff to proceed and dismiss the complaint under Section 1915. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
As currently pleaded, Plaintiff's complaint fails to state a cognizable claim and is frivolous to the extent it lacks an arguable basis in law or fact. The Complaint consists of one paragraph, which fails to allege any facts establishing a cause of action against Defendants:
Plaintiff alleges: that the defendants did conspire to violate her Constitutional Rights by threats, if plaintiff exposed defendants had violate privacy torts and did not carry out those threats which did cause plaintiff to suffer severe medical problem and harm which is a violation under Title 42 § 1985 & 1973.
Even affording Plaintiff's complaint the special consideration given to pro se claimants, her allegations fail to present facts sufficient to support a cognizable legal theory against Defendant. Although the Court must assume Plaintiff can prove the facts she alleges in her complaint, the Court may not "supply essential elements of the claim thatwere not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Based on the foregoing, the Court GRANTS Plaintiff's Motion to Proceed in Forma Pauperis pursuant to 28 U.S.C. § 1915(a), but DISMISSES WITHOUT PREJUDICE Plaintiff's complaint as frivolous and for failing to state a claim upon which relief can be granted.
Plaintiff is GRANTED thirty (30) days from the date this Order is filed to file a First Amended Complaint addressing the deficiencies of the pleading set forth above. Plaintiff is cautioned her First Amended Complaint must be complete in itself, without relying on references to the original Complaint. Plaintiff is further cautioned any defendant not named or claim not re-alleged will be considered waived. See King v. Attiyeh, 814 F.3d 1172, 1177-79 (9th Cir. 1996). IT IS SO ORDERED.
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