United States District Court, S.D. California
JEREMIAH W. BALIK, Plaintiff,
SPRINT/UNITED MANAGEMENT CO.; TIME WARNER CABLE, INC.; TELEPHONE AND DATA SYSTEMS, INC.; PATRICK M. GAVIN, VP of Counsel; SPRINT, INC., Defendants.
WILLIAM Q. HAYES United States District Judge
matter before the Court is the “Motion - Additional
Details Per Fed R C 24(a)(3)” (ECF No. 8) filed by
Plaintiff Jeremiah W. Balik.
9, 2016, Plaintiff, proceeding pro se, initiated this action
by filing a Complaint. (ECF No. 1). On May 9, 2016, Plaintiff
also filed the motion to proceed in forma pauperis
(“IFP”). (ECF No. 2).
25, 2016, the Court issued an Order denying the motion to
proceed in forma pauperis without prejudice on the grounds
that Plaintiff did not provide the Court with sufficient
information. (ECF No. 3). The Order stated, “Plaintiff
shall ... either (1) pay the requisite $400 filing fee, or
(2) submit a more detailed motion to proceed in forma
pauperis.” Id. at 3.
29, 2016, Plaintiff filed the “Motion - Additional
Details Per Fed R C 12(a)(3).” The motion provides the
Court with additional information regarding Plaintiff’s
bank account balances and monthly spending. The Court
construes the motion as a motion to proceed in IFP, and
considers the information in both motions to proceed IFP in
deciding whether to grant Plaintiff IFP.
Motion to Proceed IFP
parties instituting a civil action, suit, or proceeding in a
district court of the United States, other than a petition
for writ of habeas corpus, must pay a filing fee of $400.00.
See 28 U.S.C. § 1914(a); S.D. Cal. Civ. L.R.
4.5. An action may proceed despite a party’s failure to
pay only if the party is granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a). See
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
“To proceed in forma pauperis is a privilege, not a
right.” Smart v. Heinze, 347 F.2d 114, 116
(9th Cir. 1965).
Plaintiff’s affidavit accompanying the original motion
to proceed in forma pauperis, Plaintiff states that he is not
currently employed. Plaintiff states that he receives $2, 900
per month in VA benefits. Plaintiff states that he has a 2011
Toyota Prius that he is still making payments on. Among other
expenses, Plaintiff states that his average monthly rent is
$2, 015 and his monthly utilities cost $350. Plaintiff states
that he spends at least $800 on food, $150 on clothing, $35
on laundry and dry cleaning, and approximately $623 on
transportation each month. In his most recent motion,
Plaintiff provided bank account records which indicate that
as of June 7, 2016, Plaintiff had $1, 217.28 in his Wells
Fargo checking account, $437.01 in his Wells Fargo savings
account, and $163.52 in his Navy Federal Credit Union
Court has reviewed the motions and accompanying documents and
finds that they are sufficient to show that Plaintiff is
unable to pay the fees or post securities required to
maintain this action. The Court grants the motion to proceed
IFP pursuant to 28 U.S.C. § 1915(a).
Initial Screening of Complaint
complaint filed by any person proceeding in forma pauperis
pursuant to 28 U.S.C. § 1915(a) is also subject to
mandatory review and sua sponte dismissal to the extent it
“is frivolous or malicious; fails to state a claim on
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)(i)-(iii); see Lopez v. Smith,
203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). The standard
used to evaluate whether a complaint states a claim is a
liberal one, particularly when the action has been filed pro
se. See Estelle v. Gamble, 429 U.S. 97, 97 (1976).
However, even a “liberal interpretation . . . may not
supply 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). “[P]ro
se litigants are bound by the rules of procedure.”
Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
Federal Rule of Civil Procedure 8 provides that “[a]
pleading that states a claim for relief must contain ... a
short and plain statement of the claim showing that the
pleader is entitled to relief....” Fed.R.Civ.P. 8(a).
“[A] plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
named Sprint/United Management Co., Time Warner Cable, Inc.,
and Telephone and Data Systems, Inc. as Defendants. Plaintiff
alleges claims against Defendants for racial discrimination
pursuant to § 703(a)(1) of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a)(1). (ECF No. 1 at
3). The Complaint alleges the following facts with regard to
Plaintiff’s application for employment with Defendants
and Defendants’ actions in not hiring Plaintiff:
“Plaintiff applied for numerous jobs with Defendants,
in numerous states [E.g., California, Illinois and
Wisconsin]. Plaintiff was denied employment in every
situation due to the first cause of action; discrimination
[with pretext] . . . .” Id. The Complaint
alleges that after Plaintiff accepted an offer from Defendant
[Sprint], “Plaintiff’s Sprint offer was rescinded
for no valid reason.” Id. at 5. The Complaint
alleges that “Plaintiff applied for positions Plaintiff
was more than qualified for with Defendant in San Diego and
Los Angeles. Plaintiff received email replies that Defendant
would not be moving on with Plaintiff.” Id. at
8. The Complaint alleges that
Plaintiff interviewed and accepted an offer with TDS
Telecom/Defendant at or around March 21, 2012 . . . Plaintiff
received call from TDS . . . HR Specialist Nicole Jooranstand
after signing offer letter and getting training start date
that they needed to do additional background checking - call
Plaintiff’s references. Nicole Joraanstad lied; she
never called any of Plaintiff’s job references, one of
which is U.S. Senator Charles Grassley. ...