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John Frederick Wheeler, Plaintiff v. United States

May 4, 2012

JOHN FREDERICK WHEELER, PLAINTIFF,
v.
UNITED STATES, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT WITHOUT LEAVE TO AMEND (Docs. 1, 2, 5)

John Frederick Wheeler ("Plaintiff") commenced this action on April 19, 2012 by filing a motion to file a complaint and a complaint against the United States for violations of his civil rights. (Docs. 1-2). On April 27, 2012, Plaintiff filed a motion to proceed in forma pauperis. (Doc. 5). Plaintiff's motion to file the complaint is GRANTED. However, for the following reasons, the Court recommends Plaintiff's motion to proceed in forma pauperis be DENIED and the complaint be 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 leave to proceed in forma pauperis ("IFP") is granted by the Court. See Rodriguez v. Cook, 169 F.3d 2 1178, 1177 (9th Cir. 1999).

The Ninth Circuit has held "permission to proceed in forma pauperis is itself a matter of privilege and not a right; denial of an informa pauperis status does not violate the applicant's right to 5 due process." Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314 6 F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to 7 proceed IFP. O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In 8 making a determination, the court "must be careful to avoid construing the statute so narrowly that a 9 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 application to proceed be denied because, as discussed below, Plaintiff's complaint fails to state a meritorious claim upon which relief may be granted.*fn1 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 2

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A 3 pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short 4 and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the 5 relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 6 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less 7 stringent standards" than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972). 8

A complaint must give fair notice and state the elements of the plaintiff's claim in a plain and 9 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 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 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 266, 268 (9th Cir. 1982). The Court clarified further, [A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. 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. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of ‗entitlement to relief.'

Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a complaint to the extent that deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

IV. PLAINTIFF‟S ALLEGATIONS

Plaintiff alleges that on or about January 27, 2012, he went to Clinica Sierra Vista*fn2 without an 3 appointment for treatment. When he arrived, he was told there was only one doctor because the other 4 doctor was sick so the only chance to be treated was if a patient failed to appear for his appointment. 5 (Doc. 1 at 5). According to Plaintiff, the same thing happened on or about February 14, 2012, when he 6 again sought medical treatment at Clinica Sierra Vista. Id. Each time, the staff suggested he go to an 7 urgent care center for treatment. Id. at 6. Plaintiff admits ...


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