United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is proceeding in this action pro se. This matter was
accordingly referred to the undersigned by E.D. Cal. R.
(“Local Rule”) 302(c)(21). Plaintiff has also
requested leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. ECF No. 2. The request will be denied
because (1) plaintiff's IFP application fails to make a
showing required by 28 U.S.C. § 1915(a)(1), and (2) the
complaint, in its current form, is frivolous.
INSUFFICIENT INFORMATION IN THE IFP APPLICATION
in forma pauperis application fails to disclose whether in
the “past twelve months [she has] received any money
from any” “business, profession or other
self-employment, rent payments, interest or dividends,
pensions annuities or life insurance payments, gifts or
inheritances, or any other sources.” ECF No. 2 at 1
¶ 3. Because of this omissions, plaintiff's
application fails to establish that she is entitled to
prosecute this case without paying the required fees.
Furthermore, where “plaintiff's claim appears to be
frivolous on the face of the complaint, ” the district
court may “deny plaintiff leave to file in forma
pauperis.” O'Loughlin v. Doe, 920
F.2d 614, 617 (9th Cir. 1990).
statute requires federal courts to dismiss a case if the
action is legally “frivolous” or fails to state a
claim upon which relief may be granted. 28 U.S.C. §
1915(e)(2). Plaintiff must assist the court in determining
whether the complaint is frivolous or not, by drafting the
complaint so that it complies with the Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”). Under the Federal
Rules of Civil Procedure, the complaint must contain (1) a
“short and plain statement” of the basis for
federal jurisdiction (that is, the reason the case is filed
in this court, rather than in a state court), (2) a short and
plain statement showing that plaintiff is entitled to relief
(that is, who harmed the plaintiff, and in what way), and (3)
a demand for the relief sought. Fed.R.Civ.P.
(“Rule”) 8(a). Plaintiff's claims must be set
forth simply, concisely and directly. Rule 8(d)(1). The
federal IFP statute requires federal courts to dismiss a case
if the action is legally “frivolous or malicious,
” fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Erickson v. Pardus,
551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum
of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010),
cert. denied, 564 U.S. 1037 (2011); Hebbe v.
Pliler, 627 F.3d 338, 340 (9th Cir. 2010). However, the
court need not accept as true, legal conclusions cast in the
form of factual allegations, or allegations that contradict
matters properly subject to judicial notice. See Western
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.
1981); Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir.), as amended, 275 F.3d 1187
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). Pro se complaints are construed liberally and may
only be dismissed if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief. Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014). A pro se
litigant is entitled to notice of the deficiencies in the
complaint and an opportunity to amend, unless the
complaint's deficiencies could not be cured by amendment.
See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.
complaint alleges violations of the “Americans with
Disabilities Act [(ADA)], Violent Crime Control and Law
Enforcement Act, and Matthew Shepard and James Byrd Hate
Crimes Prevention Act.” ECF No. 1 at 4 ¶ A. These
statutes are asserted as the basis for federal question
alleges that while she was “dragging [her] older
neighbor's garbage can to the street for
collection” the defendant drove rapidly towards her,
pulled up alongside her and “lowered the passenger side
window and began cursing , threatening , and calling
[her] derogatory names.” Id. at 5 ¶ III.
Plaintiff “began edging along the side of [the] truck
to cross the road” to leave and when she was behind
defendant's truck, “he threw the truck into
reverse, accelerated, striking [plaintiff] on the left side
of [her] knee. Upon impact, [defendant] shifted into drive
and sped away.” Id. As “relief, ”
plaintiff asks for “medical bills and surgery now
required for [her] torn lateral meniscus.” Id.
at 6 ¶ IV.
allegations do not establish federal question jurisdiction.
Plaintiff's statement of her claim does not include any
facts that establish (or indicate the existence of) a
violation of federal law, but rather suggests a personal
injury claim that would be governed by state law and must be
filed in state court.
complaint does not contain any facts showing that plaintiff
has a claim entitling her to relief under the statutes she
invokes. The ADA prohibits discrimination against persons
with disabilities in areas of employment (Title I); public
services (Title II); and public accommodations (Title III).
See Tenessee v. Lane, 541 U.S. 509, 516 (2004). The
complaint does not allege any acts of discrimination on the
basis of disability, and does not involve employment, public
services, or public accommodations. Neither the Violent Crime
Control and Law Enforcement Act nor the Matthew Shepard and
James Byrd Hate Crimes Prevention Act create a private right
of action. The complaint fails to explain how these statutes
are implicated in the alleged personal injury. Even if
defendant was motivated by prejudice of some kind (he is
alleged to have used ...