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Harring v. Martens

United States District Court, E.D. California

April 16, 2014

DAVID HARRING, KENNETH HARRING, Plaintiffs,
v.
CHRISTOPHER MARTENS, Defendant.

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) ORDER GRANTING APPLICATION TO PROCEED INFORMA PAUPERIS AND ORDER TO SUBMIT APPLICATION AS TO KENNETH HARRING (ECF No. 4) THIRTY-DAY DEADLINE

BARBARA A. McAULIFFE, Magistrate Judge.

SCREENING ORDER

Plaintiffs David Harring and Kenneth Harring ("Plaintiffs") proceed pro se and in forma pauperis in this civil action. Plaintiffs allege that they entered into a retainer agreement for legal services to be performed by defendant which were not performed. Plaintiffs' Complaint, filed on November 27, 2013, is currently before the Court for screening.

Request to Proceed without Payment of Fees

Plaintiff David Harring is proceeding pro se and has requested leave to proceed in forma pauperis pursuant to Title 28 of the United States Code section 1915(a). Plaintiff David Harring has made the showing required by section 1915(a), and accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

Plaintiff Kenneth Harring has not submitted a completed in forma pauperis application form pursuant to 28 U.S.C. § 1915, nor has he paid the $400.00 filing fee. Accordingly, he will be ordered to submit an application to proceed informa pauperis, completed and signed, or in the alternative, pay the $400.00 filing fee for this action.

Screening Requirement

The Court is required to screen complaints brought by persons proceeding in pro per. 28 U.S.C. § 1915A(a). Plaintiffs' Complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences ." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

While persons proceeding pro se actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

Plaintiffs' Allegations

Plaintiffs allege that Plaintiff David Harring entered into a written contractual agreement with attorney Christopher Martens in May 2008. Attorney Martens agreed to investigate and write a petition for habeas corpus for the sum $15, 000 on behalf of David Harring. Plaintiffs allege that they paid Attorney Martens $13, 000 in cashier checks for this anticipated service. Attorney Martens, after much delay, filed an "incompetent" petition for habeas corpus in breach of the contract. Plaintiff Kenneth Harring is David Harring's uncle who has attempted to contact Attorney Martens to resolve the dispute. Plaintiffs do not allege the injury suffered by Plaintiff Kenneth Harring. Plaintiffs allege they have filed a complaint with the State Bar of California against Attorney Martens.

DISCUSSION

Subject Matter ...


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