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Niren v. Hernandez Cervantes

United States District Court, S.D. California

January 16, 2015

LAWRENCE DAVID NIREN aka THEODORE ROXFORD, Plaintiff,
v.
MARCO ANTONIO HERNANDEZ CERVANTES and MARIA SARA CERVANTES CASTRO, Defendants.

ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (2) DISMISSING COMPLAINT [Docket No. 2]

ROGER T. BENITEZ, District Judge.

Before this Court is a Motion to Proceed In Forma Pauperis, filed by Plaintiff Lawrence David Niren. (Docket No. 2). For the reasons stated below, the Motion is GRANTED and the action is DISMISSED without prejudice.

BACKGROUND[1]

On October 31, 2014, Plaintiff filed a complaint alleging intentional infliction of emotional distress. (Docket No. 1). Plaintiff alleges that Defendants Marco Antonio Hernandez Cervantes and Maria Sara Cervantes Castro "knowingly and intentionally" caused Plaintiff and his family to suffer by Defendant's "lies, cruelty, and deceit." (Compl. ¶ 15). Plaintiff contends Defendants made false, statements against him, and knew that doing so would result in Plaintiff going to jail. (Compl. ¶ 55).

Plaintiff frequently visits his ex-wife and son in Rosarito, Mexico. (Compl. ¶ 2, 16). During his visits, Plaintiff feeds his ex-wife's dog and any other stray dogs nearby. (Compl. ¶ 2). Sometime in April or May 2014, a stranger approached Plaintiff's ex-wife's house complaining that he was bitten by a dog that Plaintiff fed. (Compl. ¶ 4). The stranger was accompanied by Defendants, Marco Antonio Hernandez Cervantes and Maria Sara Cervantes Castro. (Compl. ¶¶ 4, 24-25). The stranger and Defendants threatened to call the police unless Plaintiff paid the stranger some money. (Compl. ¶¶ 4, 6). Plaintiff refused to pay any money, and eventually the three left. (Compl. ¶¶ 8, 30).

The following day, the stranger and Defendants returned to Plaintiff's exwife's house with four men claiming to be policemen. (Compl. ¶ 28). When Plaintiff asked to see their identification, the four men refused. (Compl. ¶ 29). When the four men asked Plaintiff for his identification and passport, Plaintiff refused. (Compl. ¶ 29). Again, the group demanded Plaintiff pay the stranger some money, or they would have Plaintiff arrested. (Compl. ¶ 30). After a while, everyone parted ways. (Compl. ¶ 31).

On October 4, 2014, Plaintiff was arrested in front of his ex-wife's house in Rosarito, Mexico. (Compl. ¶ 9, 33). Plaintiff was taken to a jail and then to a courthouse in Rosarito, where he was told of the charge against him. (Compl. ¶ 10). The stranger and Defendants alleged Plaintiff owned four pitbulls who attacked the stranger, and demanded compensation. (Compl. ¶ 10). Plaintiff alleges that the Court told Plaintiff to either pay 40, 000 pesos (3, 100 U.S. dollars) or go to prison and admit that he was guilty. (Compl. ¶¶ 11, 36). "When [P]laintiff heard this from the [c]ourt, he was shocked and mortified... and he started to fear for his life...." (Compl. ¶ 37).

Plaintiff did not pay the fine, so he was taken to jail in Tijuana, Mexico. (Compl. ¶ 12). When the Court ordered the police to take Plaintiff to jail, Plaintiff felt "fear, grief, anger, horror, shame, nausea, humiliation and shock." (Compl. ¶ 41-42). According to Plaintiff, he vomited in the van on the way to jail. (Compl. ¶ 43). While in jail, Plaintiff claims that he was placed in a cell so crowded that he had to stand the whole night through. (Compl. ¶¶ 45-46). Plaintiff remained in jail - what he calls "a living hell" - for two weeks, until his ex-wife gathered enough money to pay the fine or bail amount. (Compl. ¶¶ 12-13). On October 17, 2014, Plaintiff was released. (Compl. ¶ 52). By the time Plaintiff was released, Plaintiff alleges he had already endured unbearable conditions, "which [P]laintiff is not ready to talk about." (Compl. ¶ 51).

On October 24, 2014, Plaintiff claims he went to court in Rosarito and discovered that an investigation revealed that Plaintiff "was going to be found innocent." (Compl. ¶ 54).

DISCUSSION

I. Motion to Proceed IFP

Under 28 U.S.C. § 1915(a)(1),

any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding... without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.

Plaintiff states that he is not employed and has not been employed since August 2011. (Mot. at 2). Plaintiff's only source of income comes from welfare benefits. ( Id. ) Plaintiff owns no real estate or vehicles, and has approximately sixteen dollars to his name. ( Id. at ...


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