United States District Court, S.D. California
ORDER GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS AND DISMISSING WITHOUT PREJUDICE
PLAINTIFF'S COMPLAINT (ECF NOS. 2, 3)
L. SAMMARTINO UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Rudolf Shteynberg's Motion
to Proceed In Forma Pauperis (“IFP”).
(“IFP Mot., ” ECF No. 2.)
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 is a private tutor and receives $35 per lesson,
though he does not provide the amount of lessons he offers in
the average month. (IFP Mot. 1.) He also receives $560.38 from
retirement benefits and $378 from disability benefits every
month, which totals to an average $938 monthly income.
(Id. at 2.) However, he indicates that his average
monthly expenses total roughly $2, 000, the bulk of which
come from business operations. (Id. at 4-5.) 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).
appears to have filed a Complaint under the Civil Rights Act,
42 U.S.C. § 1983, seeking to hold Defendant liable for
several alleged violations. (See generally Compl.,
ECF No. 1.) Specifically, Plaintiff brings claims for
“violations of civil rights, ” “medical
negligence, ” “mass tort, ” “false
arrests, ” “personal injuries, ”
“time spen[t], ” and “$ spen[t].”
(Id. at 1.) He also appears to list where, and in at
least one instance when, these alleged violations occurred,
but does not provide any other facts to support these claims
for relief. (See, e.g., Id. at 2 (noting that a
“false arrest by police officers” occurred at La
Messa Library in 2014).) Without any more factual
allegations, the Court cannot assess whether Plaintiff
adequately pleads plausible claims for relief. The 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 Plaintiffs Complaint. For this
reason the Court also DENIES WITHOUT PREJUDICE Plaintiffs
Motion to Appoint Counsel (ECF No. 3). See, e.g., Burns
v. Cty. of King, 883 F.2d 819, 824 (9th Cir. 1989)
(noting that appointment of counsel in civil matters is
restricted to “exceptional circumstances” which
means “the litigant must demonstrate the likelihood of
success and the complexity of legal issues involved”).
reasons stated ...