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Cushinberry v. Vinson

United States District Court, S.D. California

September 7, 2017

GARY R. CUSHINBERRY, Plaintiff,
v.
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)

          Hon. Michael M. Anello United States District Judge

         On 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. § 1915(a).

         Discussion

         I. Motion to Proceed IFP

         All 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.[1] 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).

         Plaintiff 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.

         II. Screening Pursuant to 28 U.S.C. § 1915

         Because 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).

         “The 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).

         To 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).

         In 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).

         As 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.”).

         III. Conclu ...


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