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George Patrick Stone v. Conrad Prehy

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 21, 2012

GEORGE PATRICK STONE,
PLAINTIFF,
v.
CONRAD PREHY;
SHARP MESA VISTA HOSPITAL; DAVID BERMAN, DOCTOR; ELLIOT KASTER;
ALVARADO HOSPITAL;
SAN DIEGO COUNTY SHERIFF;
EL CAJON POLICE DEPARTMENT; AND
KFR STAR REALTY DEFENDANTS.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS; AND [Doc. No. 2] (2) SUA SPONTE DISMISSING COMPLAINT [Doc. No. 1]

Plaintiff commenced this action on August 17, 2012, appearing to allege that his civil rights were violated. [Doc. No. 1.] Along with his complaint, Plaintiff submitted a motion to proceed in forma pauperis. [Doc. Nos. 2.] Having considered Plaintiff's submissions, the Court GRANTS Plaintiff leave to proceed in forma pauperis and DISMISSES WITHOUT PREJUDICE Plaintiff's complaint.

DISCUSSION

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 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." 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, 556 U.S. 662, 678 (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.

As currently pleaded, Plaintiff's complaint fails to state a claim for relief that is plausible on its face. Plaintiff's complaint is one paragraph and simply states different causes of action and legal conclusions. [See Compl. ("Impugnment of civil rights, collusion, conspiracy, bribery[,] obstruction of justice[,] color of law violations[,] abuse of power, corruption[,] entrapment, wire taping, obstruction of access to a mental health facility[,] defamation, slander[,] libel[.]").] However, Plaintiff provides no factual allegations in support of any of these claims. A complaint must contain more than mere "labels and conclusion" or a formulaic recitation of causes of action. Twombly, 550 U.S. at 555. Even affording Plaintiff's complaint the special consideration given to pro se claimants, his allegations fail to present facts sufficient to support a cognizable legal theory against any of the Defendants. Although the Court must assume Plaintiff can prove the facts he alleges in his complaint, the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff's complaint for failure to state a claim upon which relief can be granted.

CONCLUSION

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 failing to state a claim upon which relief can be granted.

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 his 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 his amended complaint does not state a claim, the Court may dismiss his complaint without leave to amend.

IT IS SO ORDERED.

20120821

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