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Tina Pedrizzetti Bertuccio, Plaintiff v. San Benito County

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


May 15, 2013

TINA PEDRIZZETTI BERTUCCIO, PLAINTIFF,
v.
SAN BENITO COUNTY; SANTA CLARA COUNTY; STATE OF CALIFORNIA; SOCIAL SECURITY ADMINISTRATION; U.S. GOVERNMENT,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DISMISSING ACTION WITH LEAVE TO AMEND

United States District Court For the Northern District of California

On March 25, 2013, Plaintiff Bertuccio filed a Complaint naming as Defendants "San Benito Cty et al and/or Santa Clara County et al[;] State of California[;] Social Security 19 Administration[;] U.S. Government." ECF No. 1. Plaintiff has also filed an Application to Proceed 20 in Forma Pauperis ("IFP Application"), ECF No. 3, as well as the following ex parte motions:

"Motion for Summary Judgment, Emergency Motion to Shorten Time, Motion for Reassignment to 22 a United States District Judge," ECF No. 4; "Motion for Emergency Relief and Judgment; Motion 23 to Waive Any Filing Problems," ECF No 5; "Motion to Shorten Time for Government to 24

Administratively Adjudicate the Claim[;] Motion to Waive the Time the Plaintiff Tina Bertuccio 25

Has To Wait To File Civil Suit," ECF No. 6; "Request for Emergency Orders Ex Parte and 26

Summary Judgment Req. for Our Legal Identifying Docs[;] Req. for Specific Gov. Code if 27 denied[;] Jud. Review Request for Judge to Enforce the Legal Documents," ECF No. 9. The Court 28

first DENIES Plaintiff's IFP Application and DISMISSES the Complaint with leave to amend, and 2 then DENIES as moot Plaintiff's pending ex parte motions. 3

5 suit without prepayment of the filing fee required by the clerk of the court if the plaintiff submits 6 an affidavit of poverty showing that he or she is "unable to pay such fees or give security therefor." 7

Court may deny leave to proceed in forma pauperis and dismiss the complaint if it determines at 9 the outset "from the face of the proposed complaint that the action is frivolous or without merit," or 10 the action fails to state a claim on which relief may be granted. Tripati v. First Nat'l Bank & Trust,

A. In Forma Pauperis Application

Under the federal in forma pauperis statute, a court may authorize the commencement of a

28 U.S.C. § 1915(a). However, even if the plaintiff makes an adequate showing of poverty, the 8

821 F.2d 1368, 1370 (9th Cir. 1987); Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir.1998); see also 28 U.S.C. § 1915(e); Calhoun v. Stahl, 245 F.3d 845, 845 (9th Cir. 2001) (per 13 curiam) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."). 14

"embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." 17

Neitzke, 490 U.S. at 325. In order to state a claim on which relief may be granted, a plaintiff must 18 plead "factual content that allows the court to draw the reasonable inference that the defendant is 19 liable for the misconduct alleged." See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20

21 declared under penalty of perjury that she is not presently employed, that she is facing eviction, and 22 that her monthly expenses are $950.00. However, in completing the Application to Proceed in 23

Forma Pauperis, Plaintiff has left significant portions of the application blank. Specifically, she 24 does not indicate "the date of last employment and the amount of the gross and net salary and 25 wages per month" she received, and she has not indicated whether or not she has received within 26 the past twelve months any money from "Business, Profession or self employment"; "Income from 27 stocks, bonds, or royalties"; "Rent payments"; or "Pensions, annuities, or life insurance payments." 28

A complaint is frivolous if "it has no arguable substance of law or fact." Tripati, 821 F.2d at

1370 (citations omitted); Neitzke v. Williams, 490 U.S. 319, 325 (1989). The term frivolous 16

The Court is concerned about the sufficiency of Plaintiff's IFP Application. Plaintiff has

IFP Application at 1-2. She states that she has been receiving money from a government source,

but does not specify which source. Id. at 2. She offers only the following explanation: "I have 2 been accepting an illegal check issued by Audrey Franco ITF Gail Franco $550.00 for rent. . . . I 3 now refused to accept it and have an eviction notice." Id. She also indicates "unknown" in 4 response to whether she owns a home or automobile, a bank account, or any cash. Id. at 3. She 5 states, "see attached complaint for explanation of unknowns," which appears to reference her entire 6

Complaint. Id. Plaintiff does note on the IFP Application form that she is unable to afford access 7 to a computer to print paper work or to make copies. Id. at 1. 8

However, the Court's greater concern lies with the sufficiency of the Complaint. Even

9 construing Plaintiff's pro se Complaint liberally, see Bernhardt v. Los Angeles County, 339 F.3d 10

920, 925 (9th Cir. 2003), it is not clear from the face of the proposed Complaint which substantive

claims Plaintiff is pursuing, or what relief is sought. This confusion is compounded by the fact that

United States District Court For the Northern District of California

the Complaint's paragraphs are not numbered, nor is each paragraph limited to a single set of 13 circumstances. See Fed. R. Civ. P. 10 ("A party must state its claims or defenses in numbered 14 paragraphs, each limited as far as practicable to a single set of circumstances.") More importantly, 15 the Court is unable to determine which parts of the Complaint show that Plaintiff is entitled to 16 relief, or what relief Plaintiff seeks. See Fed. R. Civ. P. 8(a): 17

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

The Court discerns that Plaintiff's claims arise out of her initial allegation that "defendents

[sic] caused personal injury and pain, acquired my unclaimed property, illegally documented me 23 under a fictitious name, [and] illegally took my child." Compl. at 1. However, the subsequent 24 paragraphs do not provide sufficient factual allegations to substantiate these claims, do not 25 distinguish between which allegations are brought against which defendant, and do not identify the 26 relief the Plaintiff seeks. As a result, the Court DENIES Plaintiff's IFP Application, and 27

DISMISSES the Complaint. 28

Claim for Relief. A pleading that states a claim for relief must contain:

3 application. A court should grant leave to amend even if no request to amend the pleading was 4 made, unless the court determines that the pleading could not possibly be cured by the allegation of 5 other facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); see also Tripati, 821 F.2d at 1370. 6

Specifically, "pro se plaintiffs proceeding in forma pauperis must also be given an opportunity to 7 amend their complaint unless it is 'absolutely clear that the deficiencies of the complaint could not 8 be cured by amendment." Tripati, 821 F.2d at 1370 (quoting Franklin v. Murphy, 745 F.2d 1221, 9

Complaint by clearly identifying the factual basis of her allegations in numbered paragraphs, 11 and clearly identifying the

specifying which allegations are brought against which Defendants, 12 relief that she requests. Accordingly, Plaintiff is given leave to file an amended Complaint within 13

21 days of this Order. Plaintiff may also file a new IFP Application, provided that the application 14 answers each of the questions to the best of Plaintiff's ability, and explicitly explains any 15

"unknown" information. 16

18 motions. Because the opposing parties were not notified of the motions, these motions are 19 considered ex parte communications. See Civil Local Rule 1-5(d) ("Ex parte means contact with 20 the Court without the advance knowledge or contemporaneous participation of all other parties."). 21

B. Leave to Amend

However, the Court gives Plaintiff leave to amend her Complaint and re-file a new IFP

1228 n.9 (9th Cir. 1984)). In this case, Plaintiff may be able to cure the deficiencies of the 10

United States District Court For the Northern District of California

C. Ex Parte Communications with the Court

Plaintiff has not served any of the Defendants, nor notified them of any of her subsequent

If not ordered by the assigned judge, ex parte motions are prohibited unless "a statute,

Federal Rule, local rule or Standing Order authorizes the filing of an ex parte motion in the 23 circumstances and the party has complied with the applicable provisions allowing the party to 24 approach the Court on an ex parte basis. The motion must include a citation to the statute, rule or 25 order which permits the use of an ex parte motion to obtain the relief sought." Civil Local Rule 7-26

10. None of Plaintiffs' motions identified any authorization for her ex parte communications. This 27 alone would justify denial of Plaintiff's four ex parte motions. Moreover, because this Order 28 dismisses Plaintiff's Complaint, Plaintiff's pending motions are DENIED as moot.

IT IS SO ORDERED. 2 3

20130515

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