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Elliot v. San Francisco Department of Public Health

United States District Court, N.D. California

July 10, 2015

VANCE S. ELLIOT, Plaintiff,
v.
THE SAN FRANCISCO DEPARTMENT OF PUBLIC HEALTH, Defendant.

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

MARIA-ELENA JAMES, Magistrate Judge.

INTRODUCTION

On July 6, 2015, Plaintiff Vance S. Elliot ("Plaintiff") filed a Complaint (Dkt. No. 1) and an Application to Proceed In Forma Pauperis (Dkt. No. 3). He also filed a consent to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Dkt. No. 4), and therefore, the undersigned may exercise jurisdiction to conduct all proceedings in this matter, including the entry of judgment.[1] For the reasons stated below, the Court GRANTS the application to proceed in forma pauperis and DISMISSES the Complaint WITH LEAVE TO AMEND.

BACKGROUND[2]

Although not stated in the Complaint, it appears Plaintiff is a resident of a property owned and/or operated by Defendant San Francisco Department of Public Health. In February 2015, Plaintiff received a letter from the Director of the Department of Public Health "citing all kinds of filthy things had been found in my room by an Inspector of Department of Public Health and that I should clean up my my [sic] room forthwith or face eviction." Plaintiff also alleges he appeared for an Abatement Hearing at 300 Grove Street where testimony was given by an inspector that his "room had feces on the floor, cobwebs on the ceinling [sic] and other noxious conditions [sic] were present." He alleges he was not given the opportunity to cross-examine the Inspector or see any evidence that was presented. He further alleges that none of these conditions were present in his room, "therefore, the man's testimony was perjured throughout."

Plaintiff captions his Complaint as "Perjury and Slander." On the Civil Cover Sheet, he states the nature of his suit is "Personal Injury" for "Assault, Libel & Slander." He requests the Court order Defendant to cease and desist any further action "until a person representing me shall have the opportunity to testify on my behalf at trial that I was the victim of a Kangroo [sic] Court in which an Inspector of the Department [of Public] Health had perjured himself."

APPLICATION TO PROCEED IN FORMA PAUPERIS

Pursuant to 28 U.S.C. § 1915, a district court may authorize the commencement of a civil action in forma pauperis if it is satisfied that the would-be plaintiff cannot pay the filing fees necessary to pursue the action. 28 U.S.C. § 1915(a)(1). Here, Plaintiff submitted the required documentation, and it is evident from the application that the listed assets and income are insufficient to enable Plaintiff to pay the filing fees. Accordingly, the Court GRANTS the Application to Proceed In Forma Pauperis.

SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2)

A. Legal Standard

Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the Court if it is frivolous, malicious, 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. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before directing that the complaint be served by the United States Marshal pursuant to Federal Rule of Civil Procedure ("Rule") 4(c)(2). Lopez, 203 F.3d at 1127; see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that the language of § 1915(e) (2)(B)(ii) parallels the language of Rule 12(b)(6)). As the United States Supreme Court has explained, "[the in forma pauperis statute] is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit." Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).

"Frivolousness" within the meaning of the in forma pauperis standard of 28 U.S.C. § 1915(d) and failure to state a claim under Rule 12(b)(6) are distinct concepts. A complaint is "frivolous" when it lacks an arguable basis either in law or in fact. Id. at 325 (definition of "frivolous... embraces not only the arguable legal conclusion, but also the fanciful factual allegation"). When determining whether to dismiss a complaint as "frivolous" under 28 U.S.C. § 1915(e)(2)(B)(i), the Court has "the unusual power to pierce the veil of the complaint's factual allegations, '" meaning that the Court "is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Nietzke, 490 U.S. at 327). Further, the Ninth Circuit has expressly held that frivolous litigation "is not limited to cases in which a legal claim is entirely without merit.... [A] person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false." Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1060-61 (9th Cir. 2007).

The Court may also dismiss a complaint sua sponte under Rule 12(b)(6). Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988). Under Rule 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint include a "short and plain statement" showing the plaintiff is entitled to relief. "To survive a motion to dismiss, 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) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain detailed factual allegations, but the plaintiff must "provide the grounds' of his entitle[ment]' to relief, " which "requires more than labels and conclusions, " and merely "a formulaic recitation of the elements of a cause of action" is insufficient. Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555.

In ruling on a motion to dismiss, courts may consider only "the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice." Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). The factual allegations pled in the complaint must be taken as true and reasonable inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, the Court cannot assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). "Nor is the court required to accept as true ...


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