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James R. Patterson v. Kern County Department of

April 11, 2012

JAMES R. PATTERSON,
PLAINTIFF,
v.
KERN COUNTY DEPARTMENT OF HUMAN SERVICES, ET AL.,
DEFENDANTS.



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

ORDER SEALING PORTIONS OF PLAINTIFF‟S COMPLAINT (Doc. 1) FINDINGS AND RECOMMENDATION DENYING PLAINTIFF‟S MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND (Docs. 1-2)

James R. Patterson ("Plaintiff") seeks to proceed in forma pauperis and pro se with a civil action initiated on April 5, 2012. (Docs. 1-2). Plaintiff seeks review of a child custody determination made, and alleges the Department of Human Services inaccurately recorded information. (Doc. 1 at 7). For the following reasons, the Court recommends Plaintiff‟s motion to proceed in forma pauperis be DENIED and the complaint DISMISSED without leave to amend.

I. MOTION TO PROCEED IN FORMA PAUPERIS

As a general rule, all parties instituting any civil action, suit or proceeding in a United States District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the commencement of an action "without prepayment of fees and costs of security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if 2 leave to proceed in forma pauperis ("IFP") is granted by the Court. See Rodriguez v. Cook, 169 F.3d 3

1178, 1177 (9th Cir. 1999). 4

The Ninth Circuit has held "permission to proceed in forma pauperis is itself a matter of 5 privilege and not a right; denial of an informa pauperis status does not violate the applicant‟s right to 6 due process." Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314 7 F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to 8 proceed IFP. O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In 9 making a determination, the court "must be careful to avoid construing the statute so narrowly that a litigant is presented with a Hobson‟s choice between eschewing a potentially meritorious claim or foregoing life‟s plain necessities." Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

Here, the Court recommends Plaintiff‟s motion to proceed IFP be denied because, as discussed below, the complaint fails to state a meritorious claim upon which relief may be granted. See 28 U.S.C.§ 1915(e)(2).

II. SCREENING REQUIREMENT

When an individual seeks to proceed in forma pauperis, the Court is required to review the

complaint and identify "cognizable claims." See 28 U.S.C § 1915(a)-(b). The Court must dismiss a complaint, or portion of the complaint, if it is "frivolous, malicious or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief."

28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A claim is frivolous "when the facts alleged rise 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).

III. 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 ...


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