Marvik v. Screen Actor's Guild ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVE MARVIK, ) Case No.: 1:21-cv-01106-AWI-JLT ) 12 Plaintiff, ) FINDINGS AND RECOMMENDATIONS ) DENYING PLAINTIFF’S MOTION TO PROCEED 13 v. ) IN FORMA PAUPERIS AND DISMISSING THE ) ACTION WITHOUT PREJUDICE 14 THE SCREEN ACTORS GUILD, ) 15 Defendant. ) [THIRTY-DAY OBJECTION DEADLINE] ) 16 ) 17 Steve Marvik seeks to proceed pro se and in forma pauperis in this action against the screen 18 actors guild. (See Doc. 1.) The Court finds the plaintiff is unable to state a claim upon which relief 19 may be granted, therefore, the Court recommends the plaintiff’s motion to proceed in forma pauperis 20 be DENIED and the complaint be DISMISSED without prejudice as the Court lacks jurisdiction. 21 I. Request to proceed in forma pauperis 22 As a general rule, all parties instituting any civil action, suit or proceeding in a United States 23 District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the 24 commencement of an action “without prepayment of fees or security therefor, by a person who 25 submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” 28 U.S.C. 26 § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if leave 27 to proceed in forma pauperis is granted by the Court. See Rodriguez v. Cook, 169 F.3d 1178, 1177 28 (9th Cir. 1999). 1 The Ninth Circuit has held “permission to proceed in forma pauperis is itself a matter of 2 privilege and not a right; denial of an in forma pauperis status does not violate the applicant’s right to 3 due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314 4 F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to 5 proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In 6 making a determination, the court “must be careful to avoid construing the statute so narrowly that a 7 litigant is presented with a Hobson’s choice between eschewing a potentially meritorious claim or 8 foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984). 9 The Court recommends the plaintiff’s application to proceed in forma pauperis be denied 10 because, as discussed below, the complaint fails to state a meritorious claim upon which relief may be 11 granted. See, e.g., Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (“A district court 12 may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 13 complaint that the action is frivolous or without merit”); Tripati v. First Nat’l Bank & Trust, 821 F.2d 14 1368, 1369 (9th Cir. 1987) (same). 15 II. Screening Requirement 16 When an individual seeks to proceed in forma pauperis, the Court is required to review the 17 complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious, or 18 fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant 19 who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). 20 A plaintiff’s claim is frivolous “when the facts alleged rise to the level of the irrational or the 21 wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” 22 Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). In other words, a complaint is frivolous where the 23 litigant sets “not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke 24 v. Williams, 490 U.S. 319, 325 (1989). 25 III. Pleading Standards 26 General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A 27 pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of the 28 claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may 1 include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a). 2 A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and 3 succinct manner. Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The 4 purpose of the complaint is to inform the defendant of the grounds upon which the complaint stands. 5 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted, 6 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers 7 labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further 8 factual enhancement. 9 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). Vague 10 and conclusory allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 11 268 (9th Cir. 1982). The Court clarified further, 12 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the 13 plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is 14 not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are 15 “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ 16 17 Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should 18 assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal 19 conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a 20 complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 21 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc). 22 IV. Discussion 23 In the complaint, plaintiff makes sweeping statements of constitutional and criminal violations 24 but fails to provide factual allegations to support his claims. For example, plaintiff alleges that 25 “defendants have committed libel, slander, defamation, attempted murder, 1st degree murder, 26 treason,” and other criminal acts upon the plaintiff. (See Doc. 1 at 5.) Plaintiff also alleges that 27 “defendants committed treason, espionage, murder, rape, burglary, larceny, arson, kidnapping, bribery, 28 [and] perjury.” (See id.) The complaint contains only generalized legal allegations and fails to set forth 1 factual allegations to support the claims. Also, the claims appear to be fanciful and lacking in 2 plausibility. Accordingly, plaintiff fails to state a cognizable claim, and the Court recommends that 3 plaintiff’s complaint be DISMISSED. 4 V. Findings and Recommendations 5 Based upon the allegations, it does not appear the deficiencies can be cured by amendment, 6 and granting leave to amend would be futile. See Lopez, 203 F.3d at 1130; See Noll v. Carlson, 809 7 F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly, the Court RECOMMENDS: 8 1. Plaintiff’s complaint be DISMISSED without prejudice; 9 2. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; 10 3. The Clerk of Court be DIRECTED to close this action. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 13 Rules of Practice for the United States District Court, Eastern District of California. Within thirty 14 days after being served with these findings and recommendations, plaintiff may file written objections 15 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendations.” Plaintiff is advised failure to file objections within the specified time may waive 17 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 18 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 19 20 IT IS SO ORDERED. 21 Dated: July 22, 2021 _ /s/ Jennifer L. Thurston 22 CHIEF UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28