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Anthony Wiley, Sr v. the State of California

July 23, 2011


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge



Plaintiff Anthony Wiley, Sr. ("Plaintiff") seeks to proceed pro se and in forma pauperis in this action, which he commenced on May 27, 2011, by filing his complaint and first application to proceed in forma pauperis. (Docs. 1, 2). For the following reasons, Plaintiff's motion to proceed in forma pauperis is GRANTED, and his complaint is DISMISSED WITH LEAVE TO AMEND.

I. Procedural History

On June 2, 2011, the Court reviewed Plaintiff's application and complaint, and noted Plaintiff obtained a business license and was "actively engaged in operating a recycling business," which was paid more than $22,000 since the license was issued on December 9, 2010. (Doc. 3 at 1). The Court ordered Plaintiff to file an amended application to disclose his income and use of funds on a home under construction. Id. at 2.

Plaintiff filed an amended application on June 21, 2011 (Doc. 4), which the Court reviewed on June 30, 2010. (Doc. 5). The Court noted Plaintiff failed to comply with the Court's order to disclose his income from his "business, profession or other self-employment." (Doc. 5 at 2). Accordingly, the Court ordered Plaintiff to submit a complete amended application, signed under penalty of perjury, in which he was to disclose (1) the amount of income received within the last 12 months from any business, profession, or self employment and (2) the source of funds used to construct his home. Id. at 3.

On July 7, 2011, Plaintiff filed second amended application to proceed without prepayment of fees. (Doc. 6). Plaintiff asserts he received $18,573.76 from Sierra Iron, Metal and Demolition between April 6 and December 9, 2010. Id. at 3. The income from Plaintiff's business "WITCO" was $22,009.53 from December 10, 2010 through January 3, 2011. Id. In addition, Plaintiff received supplemental security income in the amount of $10,046.33 over the last twelve months.*fn1 Further, Plaintiff asserts no income was used in 2010 to construct his home, beyond the purchase of a cement mixer valued at $3,000. Id.

II. Application to proceed in forma pauperis

The Court may authorize the commencement of an action without prepayment of fees when an individual "submits an affidavit that includes a statement of all assets such person . . . possesses [and] that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a). Thought the Court has serious concerns about Plaintiff's past candor regarding his financial condition,*fn2 the Court has reviewed the applications and has determined Plaintiff has made an adequate showing of indigence to satisfy the requirements of 28 U.S.C. § 1915(a). Therefore, Plaintiff's motion to proceed in forma pauperis is GRANTED.

III. Screening Requirement

When a plaintiff is proceeding in forma pauperis, the Court is required to review the complaint, and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the action or appeal is "frivolous, malicious or fails to state a claim on which relief may be granted; or . . . seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. 1915(e)(2). A claim is frivolous "when the facts alleged arise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

IV. Pleading Standards

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards" than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

A complaint must give fair notice and state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me unlawfully accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d ...

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