Moore v. United States ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEVIN SUIT MOORE, Case No.: 19cv2341 DMS (AHG) 12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 14 UNITED STATES, AND (2) DISMISSING COMPLAINT 15 Defendant. WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM 16 UPON WHICH RELIEF CAN BE 17 GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 18 19 20 Plaintiff, a non-prisoner proceeding pro se, has submitted a Complaint along with a 21 request to proceed In Forma Pauperis. 22 Motion to Proceed IFP 23 All parties instituting any civil action, suit or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 26 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 27 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). This Court 28 finds Plaintiff’s affidavit of assets is sufficient to show he is unable to pay the fees or post 1 securities required to maintain this action. See Civil Local Rule 3.2(d). Accordingly, the 2 Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 3 Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) 4 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 5 any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and 6 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 7 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 8 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 9 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 10 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Prior to 11 its amendment by the Prison Litigation Reform Act, the former 28 U.S.C. § 1915(d) 12 permitted sua sponte dismissal of only frivolous and malicious claims. Id. at 1130. The 13 newly enacted 28 U.S.C. § 1915(e)(2), however, mandates that the court reviewing a 14 complaint filed pursuant to the IFP provisions of section 1915 make and rule on its own 15 motion to dismiss before directing that the complaint be served by the U.S. Marshal 16 pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d 1127 (“[S]ection 1915(e) not only 17 permits, but requires a district court to dismiss an in forma pauperis complaint that fails to 18 state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting 19 the “the language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil 20 Procedure 12(b)(6).”). 21 Here, Plaintiff does not specify his claims or request any relief in his complaint. He 22 provided no information regarding his statement of the claim—no factual information or 23 information about the defendant’s alleged actions. (Compl. at 1.) Moreover, he does not 24 request any relief. (Compl. at 3.) As such, this Complaint is dismissed without prejudice 25 for failure to state a claim. 26 / / / 27 / / / 28 / / / 1 || Conclusion and Order 2 For these reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion to Proceed 3 || IFP is GRANTED and the Complaint is DISMISSED without prejudice for failure to state 4 ||aclaim.! 5 IT IS SO ORDERED. 6 || Dated: December 20, 2019 J 7 2 inn yw. Hon. Dana M. Sabraw 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 |. 9g ||' In light of this ruling, Plaintiff's request for appointment of counsel is denied.