United States District Court, S.D. California
JAMES R. ROOHAN, Plaintiff,
NATIONAL MORTGAGE, et. al. Defendants.
1. DENYING MOTION TO PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. §1915(A) [DOC. NO. 2]; AND 2.
DISMISSING THE COMPLAINT WITHOUT PREJUDICE FOR FAILURE TO
STATE A CLAIM PURSUANT TO 28 U.S.C. §1915(E)(2)(B)(II)
[DOC. NO. 1]
John A. Houston United States District Judge.
matter comes before the Court on motion for leave to proceed
in forma pauperis (“IFP”). On September
9, 2017, the Court received the Complaint signed by James
Roohan, proceeding pro se (“Plaintiff”), suing on
behalf of himself against National Mortgage, Clear Recon
Corp, Sage Home Mortgage, and Rachel Callahan (collectively
“Defendants”). On the same day, Plaintiff filed a
motion for leave to proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915(a).
careful review of the record, and for the reasons set forth
below, the Court (1) DENIES Plaintiff's
motion for leave to proceed IFP, [Doc. No. 2]; (2)
DISMISSES the action without prejudice; and
(3) GRANTS Plaintiff forty-five (45) days
leave to file an Amended Complaint which cures all the
deficiencies described in this Order.
Motion for Leave 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.
This includes a $350 statutory fee and an administrative fee
of $50. See U.S.C. § 1914(a); Judicial
Conference of Fees, District Court Misc. Fee Schedule, §
14 [eff. Dec. 1, 2014]. The 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 Andrews v. Cervantes, 492 F.3d 1047,
1051 (9th Cir. 2007); Rodriguez v. Cook,
169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant
leave to file an IFP when plaintiffs submit an affidavit,
including a statement of all of their assets, showing the
inability to pay the statutory filing fee. See 28
U.S.C. § 1915(a).
James Roohan, has submitted an application to proceed in
district court without paying fees or costs. See
Doc. No. 2 at 2. Plaintiff indicates that his gross pay is
between $1700 and $1900 per month, and his take-home pay is
the same. He lists $100 in cash or in a checking or savings
account. Id. at 1, 2. Plaintiff also indicates that
he does not own an automobile, real estate, stock, bond,
security, trust, jewelry, art work, or other financial
instrument or thing of value and has regular monthly expenses
i.e., housing utilities, credit cards, food, and medical.
Id. at 2. Plaintiff has a seventeen-year-old
daughter who depends on him for support and has miscellaneous
credit card debt of $15, 000. Id.
Plaintiff provides a general list, he fails to itemize
specific dollar amounts for each monthly expense as required
under paragraph 2 on page 2 of the application. Id.
These omissions render the application incomplete and
insufficient for the Court to issue a determination as to
Plaintiff's ability to pay the filing fee required to
pursue the instant action. As such, Plaintiff's motion
for leave to proceed in forma pauperis is DENIED without
Sua Sponte Screening Pursuant to 28 U.S.C. §
Standard of Review
seeks leave to proceed IFP, pursuant to 28 U.S.C. §
1915(a). Accordingly, his Complaint is subject to sua
sponte review, and mandatory dismissal, if it is
“frivolous, malicious, . . . [or] fail[s] to state a
claim upon which relief may be granted.” See
28 U.S.C. § 1915(e)(2)(B); Coleman v.
Tollefson, 135 S.Ct. 1759, 1763 (2015). “[S]ection
1915(e) not only permits, but requires, a district court to
dismiss an in forma pauperis complaint that fails to
state a claim.” Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000) (en banc).
standard 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). To survive dismissal, the complaint
must contain “a short and plain statement of the claim
that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). 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, 556 U.S. at 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. Thus, under
Rule 8(a)(2), a Plaintiff is required to plead more than an
unadorned accusation. Id.
“in alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a
person's mind may be alleged generally.”
See Fed. R. Civ. P. 9(b). “‘The
circumstances constituting [an] alleged fraud' must be
‘specific enough to give defendants notice of the
particular misconduct so that they can defend against the
charge and not just deny that they have done anything
wrong.'” Screen Capital Int'l Corp. v.
Library Asset Acquisition Co., 510 B.R. 266, 274 (C.D.
Cal. 2014). Thus, “[t]o avoid dismissal for inadequacy
under Rule 9(b), [the] complaint would need to state the
time, place, and specific content of the false
representations as well as the identities of the parties to
the misrepresentation.” Sanford v.
MemberWorks, Inc., 625 F.3d 550, 558 (9th
courts are to construe pro se papers and pleadings liberally,
it may not “supply essential elements of claims that
were not initially pled.” Ivey v. Board of Regents
of the University of Alaska, 673 F.2d 266, 268
(9th Cir. 1982).