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Bovier v. Bridgepoint Education/Ashford University

United States District Court, S.D. California

June 7, 2017

DR. RACQUEL S. BOVIER, c/o EPIPHANY ONEPOINTE TELETHERAPY & ASSOC., LLC, Plaintiff,
v.
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.

         ORDER: (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.]

          Hon. Gonzalo P. Curiel, United States District Judge

         On May 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 & Associates (collectively, “Defendants”).[1] (Dkt. No. 1.)[2] 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.

         DISCUSSION

         I. Motion for Leave to Proceed In Forma Pauperis

         All 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.[3] 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).

         Here, 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.)

         In 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 pauperis.

         II. Sua Sponte Screening

         A 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) (§ 1915(e)(2)).

         All 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 Cir. 2009).

         “When 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 Procedure 12(b)(6).”).

         However, 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).

         Here, Plaintiff's Complaint barely passes muster. Although unclear, Plaintiff appears to allege that between June and November 2016, Defendants breached various employment agreements, [4] (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 ...


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