United States District Court, N.D. California
ORDER GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT WITH PREJUDICE, AND DENYING
“MOTION FOR APPEAL” RE: DKT. NOS. 38, 39, 40,
Gonzalez Rogers, United States District Court Judge.
se plaintiff Lynn Gavin and her family members Bamidele
Hambolu and Ibukun Hambolo initially filed this wrongful
eviction action in state court, alleging various federal and
state law violations against multiple defendants. They did so
after a court in the Northern District of California declared
Gavin a vexatious litigant and prohibited her from filing
such a suit in federal court again without the permission of
the court. See Gavin v. City & Cty. of San
Francisco, No. 15-CV-05202-EMC, 2016 WL 126937 (N.D.
Cal. Jan. 12, 2016). On August 30, 2016, the federal
defendants filed a notice of removal to federal court. (Dkt.
have filed a “motion for appeal” (Dkt. No. 38)
and have applied to proceed in forma pauperis (Dkt.
Nos. 39, 40, and 41). Having carefully considered
plaintiff's applications and the record in this case, and
for the reasons discussed below, the Court Grants
plaintiffs' in forma pauperis applications and
Dismisses with Prejudice the instant complaint. For the
reasons set forth herein, the Court also Denies
plaintiffs' “motion for appeal”.
In Forma Pauperis Application
Court may authorize a plaintiff to commence an action in
federal court in forma pauperis, meaning without
prepayment of fees or security, if the plaintiff submits an
affidavit showing that he or she is unable to pay such fees
or give security. 28 U.S.C. § 1915(a). When presented
with an application to proceed in forma pauperis,
the Court must first determine if the applicant satisfies the
economic eligibility requirement of 28 U.S.C. § 1915(a).
See Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th
Cir. 1984). Section 1915(a) does not require an applicant to
demonstrate absolute destitution. See McCone v. Holiday
Inn Convention Ctr., 797 F.2d 853, 854 (10th Cir. 1982)
(citing Adkins v. E.I. Du Pont de Nemours & Co.,
Inc., 335 U.S. 331, 339).
their applications, plaintiffs state that they are currently
unemployed and that their only source of income is from
plaintiff Gavin's social security, as she is disabled,
and from plaintiff Hambolo's CalWORKs payments.
Plaintiffs also assert that they lack any assets, and do not
own any homes or vehicles. Given this information, The Court
finds that the application to proceed in forma
pauperis is well-taken and is Granted.
Dismissal of the Complaint
in forma pauperis statute also provides that the
Court shall dismiss the case if at any time the Court
determines that the allegation of poverty is untrue, or that
the action: (1) is frivolous or malicious; (2) fails to state
a claim on which relief may be granted; or (3) seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2). The determination of whether the
litigant has stated a claim is decided under the same
standard used in Federal Rule of Civil Procedure 12(b)(6)
motions to dismiss. Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998).
to Rule 12(b)(6), a complaint may be dismissed for failure to
state a claim upon which relief may be granted. Dismissal for
failure to state a claim under Rule 12(b)(6) is proper if
there is a “lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal
theory.” Conservation Force v. Salazar, 646
F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1988)). The complaint must plead “enough facts to state
a claim [for] relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). If the facts alleged do
not support a reasonable inference of liability, stronger
than a mere possibility, the claim must be dismissed.
Id. at 678-79. Mere “conclusory allegations of
law and unwarranted inferences are insufficient to defeat a
motion to dismiss.” Adams v. Johnson, 355 F.3d
1179, 1183 (9th Cir. 2004).
Rule of Civil Procedure 8(a)(2) requires only a ‘short
and plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.' “ Twombly,
550 U.S. at 554- 55 (quoting Fed.R.Civ.P. 8(a)(2))
(alteration in original) (citation omitted). Even under the
liberal pleading standard of Rule 8(a)(2), “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.” Id. at 555
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)
(internal brackets and quotation marks omitted)). The Court
will not assume facts not alleged, nor will it draw
unwarranted inferences. Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible
claim for relief [is] a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.”). Furthermore, a pro se
pleading must be liberally construed, and “however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.”
Twombly, 550 U.S. at 570 (citation omitted).
plaintiffs' complaint fails to set forth “a short
and plain statement of the claim showing that the pleader is
entitled to relief” as required by Rule 8 of the
Federal Rules of Civil Procedure. Rather, even construing the
complaint liberally, plaintiffs have failed to state the
essential elements of the numerous claims they bring. The
complaint generally describes the events pertaining to
plaintiffs' eviction and simply repeats many of the same,
conclusory allegations regarding defendants' wrongdoing.
Further, all of the claims continue to be brought against the
San Francisco Housing Authority, and many are also brought
against the City and County of San Francisco, parties against
whom the Court previously dismissed all claims with prejudice
and without leave to amend. (Dkt. No. 26.) Consequently, the
Court is unable to discern any legally cognizable claim in
plaintiff's complaint and finds that dismissal of the
complaint in its entirety is warranted.
pro se litigants are generally given the opportunity
to amend deficient pleadings, leave may be denied where
amendment would be futile. This is the eleventh wrongful
eviction action that plaintiff Gavin has filed alleging that
she and her family were wrongfully evicted from the
Parkmerced apartments in 2012 after they failed to pay
allegedly usurious utility bills. All of plaintiff
Gavin's cases have been dismissed on various grounds,
including preclusion, statute of limitations, failure to
prosecute, failure to state a viable claim, and failure to
comply with administrative requirements such as the
California Torts Claims Act. Gavin v. City & Cty. of San
Francisco, No. 15-CV-05202-EMC, 2015 WL 7272678, at *2
(N.D. Cal. Nov. 18, 2015) (collecting cases). Although the
Court is sympathetic to plaintiffs' hardships resulting
from their eviction, given the legal deficiencies of
plantiffs' complaint and plaintiff Gavin's
problematic history of litigation in this district, the Court
finds amendment would be futile and Dismisses the complaint