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John Frederick Wheeler v. Mark Turk

August 10, 2012

JOHN FREDERICK WHEELER, PLAINTIFF,
v.
MARK TURK, CODE ENFORCEMENT OFFICER FOR THE CITY OF BAKERSFIELD, CALIFORNIA, DEFENDANT.



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

ORDER GRANTING PLAINTIFF‟S MOTION TO PROCEED IN FORMA PAUPERIS (Doc. 2) ORDER DISMISSING THE COMPLAINT WITH LEAVE TO AMEND

John Frederick Wheeler ("Plaintiff") seeks to proceed with an action for a violation of his civil rights pursuant against Mark Turk, Code Enforcement Officer for the City of Bakersfield, California. ("Defendant"). (Doc. 1). Plaintiff asserts Defendant discriminated against him on the basis of race when he issued a Notice of Code Violation. Plaintiff‟s motion to proceed in forma pauperis (Doc. 2) is GRANTED. Likewise, Plaintiff‟s motion to file the complaint (Doc. 3) is GRANTED. However, for the following reasons, Plaintiff‟s complaint is DISMISSED WITH 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). The Court has reviewed the application and has determined that it 4 satisfies the requirements of 28 U.S.C. § 1915(a). Therefore, Plaintiff‟s motion to proceed in forma 5 pauperis is GRANTED. 6

II. SCREENING REQUIREMENT 7

When an individual seeks to proceed in forma pauperis, the Court is required to review the 8 complaint and identify "cognizable claims." See 28 U.S.C § 1915(a)-(b). The Court must dismiss a 9 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 pleadings are held to "less stringent standards" than pleadings 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 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). 2

Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 3 266, 268 (9th Cir. 1982). The Court clarified further,4

[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 ...


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