United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS AND DISMISSING WITHOUT PREJUDICE PLAINTIFF'S
COMPLAINT; AND (2) DENYING MOTION TO APPOINT COUNSEL (ECF
Nos. 2, 3).
Janis L. Sammartino United States District Judge.
before the Court is Plaintiff Rich Ryan Garcia's Motion
to Proceed In Forma Pauperis (“IFP”).
(“IFP Mot., ” ECF No. 2.) Also before the Court
is Plaintiff's Motion to Appoint Counsel. (“Counsel
Mot., ” ECF No. 3.)
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 plaintiff's failure to prepay the entire fee
only if he is granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a). See
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
A federal court may authorize the commencement of an action
without the prepayment of fees if the party submits an
affidavit, including a statement of assets, showing that he
is unable to pay the required filing fee. 28 U.S.C. §
present case, Plaintiff has submitted an affidavit indicating
that he has no source of income, no savings, and no assets.
(See generally IFP Mot.) Plaintiff further claims he
has “just been released from prison” and is in a
transitional housing program. (Id. at 2.) Given the
foregoing, the Court concludes that Plaintiff's
application demonstrates he is unable to pay the requisite
fees and costs. Accordingly, the Court
GRANTS Plaintiff's Motion to Proceed
Pursuant to 28 U.S.C. §§ 1915(e)(2) &
Court must screen every civil action brought pursuant to 28
U.S.C. § 1915(a) and dismiss any case it finds
“frivolous or malicious, ” “fails to state
a claim on which relief may be granted, ” or
“seeks monetary relief against a defendant who is
immune from relief.” 28 U.S.C. § 1915(e)(2)(B);
see also 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.”);
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (en banc) (noting that 28 U.S.C. § 1915(e)
“not only permits but requires a district court to
dismiss an in forma pauperis complaint that fails to state a
amended by the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(e)(2) mandates
that the court reviewing an action filed pursuant to the IFP
provisions of § 1915 make and rule on its own motion to
dismiss before directing the Marshal to effect service
pursuant to Federal Rule of Civil Procedure 4(c)(3).
See Fed. R. Civ. P. 4(c)(3); Navarette v.
Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL
139925, at *1 (S.D. Cal. Jan. 9, 2013).
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 Atl. Corp. v. Twombly, 550 U.S. 554, 555
(2007)). “[D]etermining whether a complaint states a
plausible claim is context-specific, requiring the reviewing
court to draw on its experience and common sense.”
Iqbal, 556 U.S. at 663-64 (citing Twombly,
550 U.S. at 556).
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement of relief.”
Iqbal, 556 U.S. at 679. “[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);
see also Andrews v. King, 393 F.3d 1113, 1121 (9th
Cir. 2005); Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998) (“The language of §
1915(e)(2)(B)(ii) parallels the language of Federal Rule of
Civil Procedure 12(b)(6).”).
factual allegations are accepted as true, legal conclusions
are not.” Hoagland v. Astrue, No.
1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28,
2012) (citing Iqbal, 556 U.S. at 678). Courts cannot
accept legal conclusions set forth in a complaint if the
plaintiff has not supported her contentions with facts.
Id. (citing Iqbal, 556 U.S. at 679).
Complaint (“Compl.”), Plaintiff alleges that he
was going to prosecute Olson and Going, who were tenants of
“our La Jolla Residence” at “5436 Taft
Ave.” (Compl. 2.) But he claims that their attorney,
Cobalt, “coached and assisted them to falsify documents
and records [and] gave false statements so that [he] would be
held on Fed Hold and [thus] unable to attend [a] prior court
hearing against Olson / [testify] to [the] judge.”
(Id.) He also claims that Defendants “received
mail from Escondido AAA that was for [Plaintiff and] opened
[his] mail and saw [a] complaint from Escondido AAA and used
this information to falsify state to assist U.S. Attorney
Jamie Perks.” (Id.) However, Plaintiff does
not identify what documents Defendants allegedly falsified
or, in one instance, what they falsely stated to cause law
enforcement to prevent him from testifying at a court
hearing. Plaintiff also states that Defendants Olson and
Going “threatened our witnesses who gave affidavits . .
. stating if they didn't remove affidavits they would be
fired [from their jobs at Albertson's]!”
(Id.) But Plaintiff fails to identify a viable cause
of action that would support relief based on these
allegations. He asks the Court to “prosecute”
Defendants for falsifying documents and for opening mail, but
Plaintiff cannot personally seek criminal penalties against
these Defendants. And Plaintiff provides no civil causes of
action tethered to his allegations. Moreover, it is not clear
that the Court would have jurisdiction over what appear to be
claims in an ongoing state law case.
Court therefore finds that Plaintiff has failed to state a
claim for relief, as required by 28 U.S.C. § 1915(e)(2),
and DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint.
Because Plaintiff fails to state a cognizable claim for
relief, the Court DENIES WITHOUT PREJUDICE Plaintiff's
Motion to Appoint Counsel (ECF No. 3). See, e.g.,
Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004) (noting that, among other things, a ...