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Ramon Carreon v. Jeff Davis; Cindy Loftus; and Pedro Castillo

July 29, 2011

RAMON CARREON,
PLAINTIFF,
v.
JEFF DAVIS; CINDY LOFTUS; AND PEDRO CASTILLO, SUA SPONTE 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] DENYING MOTION FOR APPOINTMENT OF COUNSEL; [Doc. No. 3] DISMISSING COMPLAINT UNDER 28 U.S.C. § 1915(e)(2)(B) FOR FAILURE TO STATE A CLAIM

Plaintiff Ramon Carreon, proceeding pro se, initiated this action by filing a complaint against Defendants Jeff Davis, Cindy Loftus, and Pedro Castillo ("Defendants"). [Doc. No. 1.] Plaintiff contemporaneously filed a motion for leave to proceed in forma pauperis ("IFP"), and a motion for appointment of counsel. [Doc. Nos. 2, 3.]

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 he is unemployed and has been "disabled from the 1990's." [Doc. No. 2, p.2.] Plaintiff indicates he has a checking account with a balance of $0. [Id.] Plaintiff also indicates he receives social security, disability or other welfare benefits, but fails to indicate the amount of the benefits received. [Id.] However, Plaintiff's motion for appointment of counsel states he receives approximately $850 per month in social security and pension benefits due to his disability. [Doc. No. 3, p.5.] Finally, Plaintiff indicates he knows he owes debts but cannot remember the creditors nor the amounts due because of his disability. [Doc. No. 2, p.3.]

A party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But "the same even-handed care must be employed 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 he is unable to pay the fees required to maintain this action. It appears that although Plaintiff receives $850 per month in social security benefits, he has no other assets. Accordingly, the Court GRANTS Plaintiff's motion to proceed IFP under 28 U.S.C. § 1915(a).

II.

SCREENING PURSUANT TO 28U.S.C.§1915(E)(2)(B)

When a plaintiff proceeds 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 complaint fails to state a claim upon which relief may be granted.

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, 129 S. Ct. 1937, 1949 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (citation omitted).

Additionally, under Federal Rule of Civil Procedure 10(b), a plaintiff should state "each claim founded on a separate transaction or occurrence" as a "separate count." Fed. R. Civ. P. 10(b). Rule 10 provides that a "party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Id. Upon due consideration, Plaintiff's complaint fails to satisfy the pleading standards of Rule 8(a)(2) and Rule 10(b), and is therefore subject to dismissal.

Plaintiff's complaint consists of a hand-written six-page letter. [Doc. No. 1.] The document does not include a proper caption, list the parties, nor identify any purported causes of action. In addition, the combination of poor handwriting and fragmented sentences makes the majority of the complaint incomprehensible. It appears Plaintiff is attempting to assert an action for wrongful conduct associated with his housing. However, the Court cannot discern what actually occurred, what relief Plaintiff seeks, nor any identifiable actions taken by the named ...


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