United States District Court, S.D. California
DR. RACQUEL S. BOVIER, c/o EPIPHANY ONEPOINTE TELETHERAPY & ASSOC., LLC, Plaintiff,
BRIDGEPOINT EDUCATION/ASHFORD UNIVERSITY, BRIDGEPOINT UNIVERSITY GOVERNING BOARD OF REGENTS, DR. CRAIG MAXWELL, DR. ANTHONY “TONY” FARRELL, DR. DENISE MAXWELL, MR. JOHN GOODISON, DR. IRIS LAFFERTY, DR. TAMECCA FITZPATRICK, DR. JUDY DONOVAN, DR. JACKIE KYGER, MS. HEATHER MASON, DR. ALAN BELCHER, MR. ARMONDO DOMINGUEZ & ASSOC., Defendants.
(1) DENYING PLAINTIFF'S REQUEST TO PROCEED IN FORMA
PAUPERIS; (2) DISMISSING IN PART PLAINTIFF'S COMPLAINT
FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §
1915(E)(2)(B)(II); (3) GRANTING PLAINTIFF LEAVE TO AMEND HER
COMPLAINT WITHIN 21 DAYS OF ENTRY OF THIS ORDER; AND (4)
DIRECTING PLAINTIFF TO PAY THE FILING FEE ON OR BY JUNE 28,
2017 [ECF NO. 2.]
Gonzalo P. Curiel, United States District Judge
23, 2017, Plaintiff Dr. Racquel S. Bovier
(“Plaintiff”), proceeding pro se, filed
a Complaint against Bridgepoint Education c/o Ashford
University, Bridgepoint Education University, Dr. Craig
Maxwell, Dr. Anthony “Tony” Farrell, Dr. Denise
Maxwell, Mr. John Goodison, Dr. Iris Lafferty, Dr. Tamecca
Fitzpatrick, Dr. Judy Donovan, Dr. Jackie Kyger, Dr. Alan
Belcher, Ms. Heather Mason, and Mr. Armondo Dominguez &
“Defendants”). (Dkt. No. 1.) Plaintiff concurrently filed
a motion to proceed in forma pauperis
(“IFP”). (Dkt. No. 2.) For the reasons set forth
below, the Court DENIES Plaintiff's motion to proceed
in forma pauperis, DISMISSES IN PART Plaintiff's
Complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), and GRANTS Plaintiff leave to amend
her Complaint within twenty-one (21) days of entry of this
Order. Plaintiff must pay the filing fee on or by June 28,
2017 to proceed with her lawsuit.
Motion for Leave to Proceed In Forma
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). The
action may proceed despite a plaintiff's failure to
prepay the entire fee only if he is granted leave to proceed
IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v.
Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). The plaintiff must submit an affidavit demonstrating
his inability to pay the filing fee, and the affidavit must
include a complete statement of the plaintiff's assets.
28 U.S.C. § 1915(a)(1). The facts as to the
affiant's poverty must be stated “with some
particularity, definiteness, and certainty.” United
States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
When a plaintiff moves to proceed IFP, the court first
“grants or denies IFP status based on the
plaintiff's financial resources alone and then
independently determines whether to dismiss the
complaint” pursuant to 28 U.S.C. § 1915(e)(2)
(“§ 1915(e)(2)”). Franklin v.
Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). IFP
status may be acquired and lost during the course of
litigation. Wilson v. Dir. of Div. of Adult Insts.,
No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9,
2009) (internal citation omitted).
Plaintiff has supplied an affidavit in support of her
application to proceed in forma pauperis. (Dkt. No.
2.) Plaintiff declares that her average monthly income amount
during the past twelve months totaled to approximately $6599.
(Id. at 2.) Plaintiff estimates that her income
amount expected next month totals to approximately $1759.
(Id.) She is presently employed by Grand Canyon
University and receives $1500 in gross monthly pay.
(Id.) Plaintiff has $2000 in a savings account and
$2100 in a checking account. As for assets, Plaintiff owns a
$219, 000 home, a $4000 BMW, a $12, 900 Mercedes Benz, a $29,
000 Alfa Romeo, and a $25, 000 engagement ring. (Id.
at 3.) Plaintiff declares that her monthly expenses total
$5404.52. (Id. at 5.)
light of Plaintiff's monthly income, assets, and savings
and checking accounts, the Court concludes that Plaintiff can
afford the $400 filing fee. Accordingly, the Court DENIES
Plaintiff's request to proceed in forma
Sua Sponte Screening
complaint filed by any person proceeding IFP, pursuant to 28
U.S.C. § 1915(a), is additionally subject to mandatory
sua sponte screening. the Court must review
complaints filed by all persons proceeding IFP and must
sua sponte dismiss any complaint, or any portion of
a complaint, which is frivolous, malicious, fails to state a
claim, or seeks damages from defendants who are immune.
See 28 U.S.C. § 1915(e)(2)(B); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
complaints must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “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.” Id. The
“mere possibility of misconduct” falls short of
meeting this plausibility standard. Id.; see
also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[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.”); Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
“parallels the language of Federal Rule of Civil
while the court “ha[s] an obligation where the
Plaintiff is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the Plaintiff
the benefit of any doubt, ” Hebbe v. Pliler,
627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz
v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it
may not “supply essential elements of claims that were
not initially pled, ” Ivey v. Bd. of Regents of the
University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff's Complaint barely passes muster. Although
unclear, Plaintiff appears to allege that between June and
November 2016, Defendants breached various employment
agreements,  (Dkt. No. 1 at 5-6), “fail[ed] to
acknowledge” Plaintiff's disability accommodations,
(id. at 5), and wrongfully terminated her in
retaliation for her obtaining right to sue letters from the
Equal Employment Opportunity Commission ...