United States District Court, S.D. California
MONTOREY DANYELL HARPER, Military Leader UNI Star General, Plaintiff,
FED EX, SAN DIEGO, SAN DIEGO POLICE DEPARTMENT, FBI, US, UN Defendants.
ORDER (1) DENYING PLAINTIFF'S REQUEST TO PROCEED
IN FORMA PAUPERIS AND (2) DISMISSING PLAINTIFF'S
COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE
TO STATE A CLAIM PURSUANT TO 28 U.S.C. §
Gonzalo P. Curiel United States District Judge.
23, 2017, Plaintiffs Montorey Danyell Harper
(“Plaintiff” or “Harper”), proceeding
pro se, filed a Complaint against Fed Ex, the City
of San Diego, the San Diego Police Department, the Federal
Bureau of Investigation (“FBI”), the United
States of America, and the United Nations (collectively,
“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 and
DISMISSES Plaintiff's Complaint for
failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and for lack of subject matter
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 his
application to proceed in forma pauperis. (Dkt. No.
2.) Plaintiff declares that his average monthly income amount
during the past twelve months totaled to approximately $4231.
(Id. at 2.) Plaintiff has $50 in cash and $830 in
the form of a pre-paid debit card. (Id.) Plaintiffs
monthly income exceeds his total monthly expenses, which
amount to $3125. (Id. at 5.)
Court concludes that Plaintiff can afford the $400 filing
fee. Accordingly, the Court DENIES
Plaintiffs request to proceed in forma pauperis.
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 Cir. 2009).
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).
the federal court is one of limited jurisdiction.
Lowdermilk v. U.S. Bank Nat'l Ass'n, 479
F.3d 994, 997 (9th Cir. 2007). It possesses only that power
authorized by the Constitution or a statute. See Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986). It is constitutionally required to raise issues
related to federal subject matter jurisdiction and may do so
sua sponte. Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 93-94 (1998); see Indus.
Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th
Plaintiff's Complaint is defective in multiple respects.
The entirety of ...