United States District Court, S.D. California
GARY R. CUSHINBERRY, Plaintiff,
SERGEANT PATRICK VINSON,, Defendants.
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS (DOC. NO. 2) AND (2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF SUMMONS AND COMPLAINT PURSUANT TO 28 U.S.C.
§ 1915(D) AND FED. R. CIV. P. 4(C)(3)
Michael M. Anello United States District Judge
September 5, 2017, Plaintiff Gary R. Cushinberry, a
non-prisoner proceeding pro se, submitted a
complaint against Sergean Patrick Vinson and the City of San
Diego pursuant to 42 U.S.C. § 1983. Compl., Doc. No. 1.
Plaintiff has also filed a motion to proceed in forma
pauperis (“IFP”) pursuant to 28 U.S.C.
Motion to Proceed IFP
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
IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez
v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To
proceed in forma pauperis is a privilege not a
right.” Smart v. Heinze, 347 F.2d 114, 116
(9th Cir. 1965). A party need not be completely destitute to
proceed in forma pauperis. Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 339-40 (1948). But,
“the same even-handed care must be employed to assure
that federal funds are not squandered to underwrite, at
public expense, either frivolous claims or the remonstrances
of a suitor who is financially able, in whole or in material
part, to pull his own oar.” Temple v.
Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).
states that he receives $193.00 in food stamps. Doc. No. 2 at
2. Plaintiff is unemployed and has been unemployed for at
least one year. Id. at 5; see Compl. at
¶ 9-21. Plaintiff's total monthly expenses amount to
$193.00, which he uses to purchase food with his food stamps.
Plaintiff's affidavit sufficiently shows he is unable to
pay the fees or post securities required to maintain this
action. As such, the Court GRANTS
Plaintiff's motion to proceed in forma pauperis.
Screening Pursuant to 28 U.S.C. § 1915
Plaintiff is proceeding IFP, his Complaint requires a
pre-Answer screening pursuant to 28 U.S.C. §
1915(e)(2)(B). In accordance with that section, the Court
must sua sponte dismiss a Plaintiff's IFP
complaint, or any portion of it, which is “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 such
relief.” See 28 U.S.C. §
1915(e)(2)(B)(i)-(III); Calhoun v. Stahl, 254 F.3d
845, 845 (9th Cir. 2001) (“[T]he provisions of 28
U.S.C. § 1915(e)92)(B) are not limited to
prisoners.”). The court is not only allowed to, but is
required to screen IFP complaints. See Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)
(noting § 1915(e) “not only permits but
requires” the court to sua sponte dismiss an
IFP complaint that fails to state a claim).
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012). A pleading 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). Rule 8 can serve as an independent basis for
dismissal of claims. McHenry v. Renne, 84 F.3d 1172,
1179 (9th Cir. 1996). Rule 8(d) requires that plaintiffs file
“simple, concise, and direct” pleadings.
Id. Pleadings must “give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation marks and citation omitted).
A pleading lacking “simplicity, conciseness and clarity
as to whom plaintiffs are suing for what wrongs, fails to
perform the essential functions of a complaint.”
McHenry, 84 F.3d at 1180. A plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Fed.R.Civ.P. 12(b)(6); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
plausibility standard demands more than a formulaic
recitation of the elements of a cause of action, or naked
assertions devoid of further factual enhancement.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Instead, the complaint “must contain sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011).
state a claim under § 1983, a plaintiff must allege that
a right secured by the Constitution has been violated, and
the deprivation was committed by a person acting under color
of state law. West v. Atkins, 487 U.S. 42, 48
(1988). States and state officers sued in their official
capacity are not “persons” for the purposes of a
§ 1983 action, and generally, they may not be sued under
the statute. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989). Section 1983 does allow
suits against state officers in their individual capacities.
Hafer v. Melo, 502 U.S. 21, 31 (1991).
reviewing complaints, courts must assume the truth of all
factual allegations and must construe them in the light most
favorable to the plaintiff. Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need
not take legal conclusions as true merely because they are
cast in the form of factual allegations. Roberts v.
Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Where
dismissal is appropriate, a court should grant leave to amend
unless the plaintiff could not possibly cure the defects in
the pleading. Knappenberger v. City of Phoenix, 566
F.3d 936, 942 (9th Cir. 2009); Lopez v. Smith, 203
F.3d 1122, 1127-29 (9th Cir. 2000).
currently pleaded, the Court finds allegations in
Plaintiff's complaint which are sufficient to survive the
sua sponte screening required by 28 U.S.C. §
1915(e)(2). Accordingly, the Court will direct the U.S.
Marshal to effect service on Plaintiff's behalf.
See 28 U.S.C. § 1915(d) (“The officers of
the court shall issue and serve all process, and perform all
duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3)
(“[T]he court may order that service be made by a
United States marshal or deputy marshal . . . if the
plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915.”).