United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS;GRANTING MOTION TO FILE UNDER SEAL;
SUA SPONTE DISMISSING CIVIL ACTION FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C.§ 1915(e)(2)
MICHAEL M. ANELLO United States District Judge.
Jordana Bauman, proceeding pro se, has filed the
instant action against Defendants Harbor View Home Owners
Association, Castle Breckenridge Management Partners, John C.
Kalas, Marquis Huntsman, Sheri White-Newton, Vlady Dmytrenko,
Epstein Grinnell & Howell, Inc., Deborah Zumwalt, and Elisa
M. Perez. See Doc. No. 1. Plaintiff also moves for
leave to proceed in this action in forma pauperis
("IFP"), and moves to seal financial records and
medical records that she attached to her motion to proceed
for Leave to Proceed IFP
parties instituting any civil action, suit or proceeding in a
district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee of $400.
See 28 U.S.C. § 1914(a). An action may proceed
despite a plaintiffs failure to prepay the entire fee only if
she is granted leave to proceed IFP 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). A party need
not be completely destitute to proceed in forma pauperis.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,
339-40 (1948). Plaintiffs IFP application details her net
monthly income and her monthly expenses. Based thereon, the
Court concludes that Plaintiff should be allowed to proceed
IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez
v. Cook, 169F.3d 1176, 1177 (9th Cir. 1999). Plaintiffs
submission demonstrates that she lacks the financial
resources to pay the costs of commencing this action.
Accordingly, the Court GRANTS Plaintiffs motion to proceed
IFP, and, because of the sensitive nature of Plaintiff s
medical and financial records, GRANTS Plaintiffs motion to
seal. See A.B. ex rel. W.F.B. v. San Francisco Unified
Sch. Dist, No. C 07-4738 PJH, 2007 WL 2900527, at *1
(N.D. Cal. Oct. 2, 2007).
Pursuant To 28 U.S.C. S 1915(E)(2)(B)
plaintiff proceeds IFP, the complaint is subject to mandatory
screening and the Court must order the sua sponte
dismissal of any case it finds "frivolous, malicious,
failing to state a claim upon which relief may be granted, or
seeking monetary relief from a defendant immune from such
relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v.
Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited
to prisoners."). "[W]hen determining whether a
complaint states a claim, a court must accept as true all
allegations of material fact and must construe those facts in
the light most favorable to the plaintiff." Resnick
v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In
addition, the Court has a duty to liberally construe a
pro se plaintiffs pleadings. See Id. In
giving liberal interpretation to apro se complaint,
however, the court may not "supply essential elements of
claims that were not initially pled." See Ivey v.
Board of Regents of the University of Alaska, 673 F.2d
266, 268 (9th Cir. 1982).
complaint should be dismissed for failure to state a claim
if, taking all well-pleaded factual allegations as true, it
does not contain "enough facts to state a claim to
relief that is plausible on its face." See Coto
Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir.
2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Caviness v. Horizon
Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir.
2010) (citation omitted).
alleges causes of action for willful violations of a
bankruptcy stay and a violation of the Civil Rights Act, 42
U.S.C. § 1983.
Willful Violations of the Bankruptcy
"Once a debtor files for bankruptcy, the Bankruptcy Code
imposes an automatic stay prohibiting creditors from
attempting to collect pre-petition debts against the
debtor." In re Dingley, No. 14-60055, 2017 WL
1208454, at *1 (9th Cir. Apr. 3, 2017); 11 U.S.C. § 362;
In re Ozenne, 337 B.R. 214, 218-19 (B.A.P. 9th Cir.
2006) ("The filing of a petition for bankruptcy relief
automatically stays both the continuation of proceedings
against the debtor and the commencement of any act to obtain
possession of, or enforce a lien against, property of the
debtor or of the estate."). The Bankruptcy Code also
"creates a statutory remedy for individual debtors who
are injured by a violation of the automatic stay."
See In re Bertuccio, 414 B.R. 604, 611 (Bankr. N.D.
Cal. 2008); see 11 U.S.C. § 362(k)(1). Section
362(k)(1) states that "an individual injured by any
willful violation of a stay provided by this section shall
recover actual damages, including costs and attorneys'
fees, and, in appropriate circumstances, may recover punitive
damages." 11 U.S.C.A. § 362(k)(1). "A party
seeking damages for violation of the automatic stay must
prove by a preponderance of the evidence that (1) a
bankruptcy petition was filed; (2) the debtor is an
individual; (3) the creditor received notice of the petition;
(4) the creditor's actions were in willful violation of
the stay; and (5) the debtor suffered damages." See
In re Bertuccio, 414 B.R. at 611.
alleges she filed a Chapter 13 bankruptcy petition on July 5,
2011, which commenced an automatic bankruptcy stay pursuant
to 11 U.S.C. § 362. Plaintiff states that the bankruptcy
court erroneously dismissed her bankruptcy action on
September 10, 2012. Thereafter, Plaintiff alleges she
appealed the bankruptcy court's order of dismissal to the
United States District Court for the Southern District of
California. According to Plaintiffs pleadings, on August 30,
2013, the district court determined that the bankruptcy court
had violated Plaintiffs statutory and constitutional due
process rights by failing to afford her notice and a hearing
prior to dismissing her Chapter 13 petition, and thus, the
bankruptcy court's order dismissing her case was void.
See Compl. Exh. D. The district court vacated the
dismissal and remanded the case to the bankruptcy court for
further proceedings. See Compl. Exh. D. Plaintiff
contends Defendants violated the automatic bankruptcy stay in
the interim by filing a lawsuit against her in December 2012
in which they sought to foreclose on her home.
an automatic stay terminates upon dismissal of a bankruptcy
case, and while reinstatement of the bankruptcy case restores
the automatic stay, it does not do so retroactively.
See 11 U.S.C. § 362(c); In re Sewell,345 B.R. 174, 179 (B.A.P. 9th Cir. 2006); In re
Williams, No. A12-00620-GS, 2013 WL 1089262, at *2
(Bankr. D. Alaska Mar. 13, 2013) ("The reinstated stay
... does not generally attach retroactively to void acts
taken in the gap period between dismissal and
reinstatement."). However, where a court finds that a
prior order dismissing a bankruptcy case is "void for
lack of due process, " a "stay [is deemed to have
been] continuously in effect from the time of the filing of
the petition." See In re Krueger,88 B.R. 238,
241 (B.A.P. 9th Cir. 1988); In re Slyman, 234 F.3d
1081, 1087 (9th Cir. 2000); In re Sillman, No.
2:14-CV-00587-MCE, 2015 WL 1291427, at *4 (E.D. Cal. ...