UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 22, 2012
MISTY PROAK, DEFENDANT.
The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge
(1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2] (2) SUA SPONTE DISMISSING COMPLAINT; AND [Doc. No. 1] (3) DENYING WITHOUT PREJUDICE AS MOOT MOTION FOR A TEMPORARY RESTRAINING ORDER AND MOTION FOR APPOINTMENT OF COUNSEL [Doc. Nos. 1, 3]
Plaintiff Pamela Stickler ("Plaintiff") commenced this action on March 9, 2012 against Defendant Misty Proak ("Defendant"). [Doc. No. 1, Compl.] Along with her complaint, Plaintiff submitted a motion to proceed in forma pauperis and a motion for the appointment of counsel. [Doc. Nos. 2-3.] Having considered Plaintiff's submissions, the Court GRANTS Plaintiff leave to proceed in forma pauperis, DISMISSES WITHOUT PREJUDICE Plaintiff's complaint, and DENIES AS MOOT Plaintiff's motion for the appointment of counsel and Plaintiff's motion for a temporary restraining order.
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). The Court 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 the 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 complaint "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). In order to properly state a claim for relief, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,--U.S.--, 129 S. Ct. 1937, 1949 (2009). A complaint must contain more than a "labels and conclusions" or a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "'The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id.
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. Plaintiff alleges that Defendant told a pastor that he did not have to give Plaintiff financial help when she requested help from a Lutheran Church. [Compl. at 2.] Plaintiff also alleges that Defendant might have called the police when Plaintiff was attending a church in old town San Diego. [Id.] These allegations fail to identify any constitutional or statutory right that Defendant violated, and they fail to provide any facts that could establish a cause of action against Defendant. In addition, Plaintiff fails to assert any basis for federal subject matter jurisdiction.
Even affording Plaintiff's complaint the special consideration given to pro se claimants, her allegations fail to present a cognizable legal theory or facts sufficient to support a cognizable legal theory against Defendant. Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff's complaint as frivolous and for failure to state a claim upon which relief can be granted.
III. MOTION FOR APPOINTMENT OF COUNSEL
In addition to her complaint, Plaintiff has filed a motion for appointment of counsel. [Doc. No. 3.] Plaintiff's complaint also appears to be requesting a temporary restraining order ("TRO") against Defendant. [Compl. at 2.] Because the Court dismisses Plaintiff's complaint in its entirety without prejudice, Plaintiff's motion for appointment of counsel and motion for a TRO are DENIED WITHOUT PREJUDICE as moot.
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 failure to state a claim upon which relief can be granted. The Court also DENIES WITHOUT PREJUDICE as moot Plaintiff's motion for appointment of counsel and Plaintiff's motion for a TRO.
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). Plaintiff is also cautioned that if her amended complaint does not state a claim, the Court may dismiss her complaint without leave to amend.
IT IS SO ORDERED.
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