Amison v. The Walt Disney Company ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEREMI AMISON, Case No.: 20-cv-1121-AJB-DEB 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 THE WALT DISNEY COMPANY, ABC MOTION TO FILE IN FORMA NEWS, ESPN, GET UP!, MIKE 15 PAUPERIS AS MOOT; AND GREENBERG, 16 Defendants. (2) DISMISSING THE COMPLAINT 17 WITHOUT LEAVE TO AMEND 18 (Doc. No. 2) 19 20 The Court reviews pro se Plaintiff, Jeremi Amison’s (“Plaintiff”) Complaint under 21 28 U.S.C. § 1915(e), as required when a plaintiff files a motion to proceed in forma 22 pauperis (“IFP”). (Doc. Nos. 1, 2.) Under this mandatory screening, the Court finds 23 Plaintiff’s Complaint does not sufficiently establish that venue is proper. Thus, the Court 24 DENIES as moot Plaintiff’s IFP motion, (Doc. No. 2) and DISMISSES Plaintiff’s 25 complaint without leave to amend, (Doc. No. 1). 26 / / / 27 / / / 28 1 I. SCREENING UNDER 28 U.S.C. § 1915(e) 2 Under 28 U.S.C. § 1915(e)(2), when reviewing an IFP motion, the Court must rule 3 on its own motion to dismiss before the complaint is served. Lopez v. Smith, 203 F.3d 1122, 4 1127 (9th Cir. 2000). The Court must dismiss the complaint if it is frivolous, malicious, 5 fails to state a claim upon which relief may be granted, or seeks monetary relief from a 6 defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 7 845, 845 (9th Cir. 2001) (per curiam) (noting 28 U.S.C. § 1915(e)(2)(B) is “not limited to 8 prisoners”); Lopez, 203 F.3d at 1127 (“[§] 1915(e)) not only permits but requires a district 9 court to dismiss an [IFP] complaint that fails to state a claim”). 10 “The standard for determining whether a plaintiff has failed to state a claim upon 11 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 12 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 13 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must contain “a 14 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 15 R. Civ. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, 16 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 17 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). Detailed 18 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 19 action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, the 20 Court “may dismiss as frivolous complaints reciting bare legal conclusions with no 21 suggestion of supporting facts[.]” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) 22 (internal quotations omitted). 23 However, pro se pleadings are held to “less stringent standards than formal pleadings 24 drafted by lawyers” because pro se litigants are more prone to making errors in pleading 25 than litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal 26 quotations omitted); see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded 27 by statute on other grounds. Thus, the Supreme Court states federal courts should liberally 28 construe the “‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 1 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)). 2 Plaintiff alleges that he is an aspiring musician. (Doc. No. 1 at 2.) Plaintiff alleges 3 that on June 11, 2020 he was defamed by racial slurs on a live broadcast and the clip is still 4 on the YouTube. (Id.) On June 12, 2020, Plaintiff alleges that he was again slandered 5 during a live broadcast of ESPN’s show titled “Get Up!.” (Id.) Plaintiff alleges that he was 6 defamed with racial slurs. (Id.) Plaintiff requests $10 million in presumed damages, $10 7 million in general damages, and $20 million in punitive damages. (Id. at 3.) 8 Venue may be raised by a court sua sponte where the defendant has not yet filed a 9 responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 10 1486, 1488 (9th Cir. 1986). Section 1391(b) of Title 28 of the U.S. Code provides, in 11 pertinent part, that a “civil action may be brought in – (1) a judicial district in which any 12 defendant resides, if all defendants are residents of the State in which the district is located; 13 [or] (2) a judicial district in which a substantial part of the events or omissions giving rise 14 to the claim occurred, or a substantial part of property that is the subject of the action is 15 situated[.]” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. 16 Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a 17 district in which is filed a case laying venue in the wrong division or district shall dismiss, 18 or if it be in the interests of justice, transfer such case to any district or division in which it 19 could have been brought.” 28 U.S.C. § 1406(a). 20 Plaintiff alleges that he is an Illinois resident, and asserts claims against Defendants 21 who he either does not identify their residence or are a resident of Burbank, California. 22 Further, Plaintiff does not allege that any of the events giving rise to his claims occurred in 23 this district. Plaintiff’s claims bear no relation whatsoever to the Southern District of 24 California. (Doc. No. 1.) Accordingly, the Court finds venue is not proper in the Southern 25 District of California. See 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. 26 II. MOTION TO PROCEED IN FORMA PAUPERIS 27 Plaintiff moves to proceed IFP under 28 U.S.C. § 1915. All parties instituting any 28 civil action, suit, or proceeding in a district court of the United States, except an application 1 || for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action 2 proceed despite a plaintiff’s failure to prepay the entire fee only if plaintiff is granted 3 || leave to proceed IFP under 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 4 ||1177 (9th Cir. 1999). All actions sought to be filed IFP under § 1915 must be accompanied 5 || by an affidavit, signed by the applicant under penalty of perjury, that includes a statement 6 || of all assets which shows inability to pay initial fees or give security. CivLR 3.2.a. 7 However, even if Plaintiff meets the income requirement, the Ninth Circuit indicates 8 ||that leave to proceed in forma pauperis pursuant to 28 U.S.C. section 1915(a) is properly 9 || granted only when plaintiff has demonstrated poverty and presented a claim that is not 10 || factually or legally frivolous. See Tripati v. First Nat’! Bank & Trust, 821 F.2d 1368, 1370 11 || (9th Cir. 1987) (emphasis added). 12 For the reasons set forth above Plaintiff's Complaint does not properly establish 13 || venue, thus the Court DENIES Plaintiff’s IFP motion as moot. 14 CONCLUSION 15 The Court DENIES as moot Plaintiff’s IFP motion, (Doc. No. 2) and DISMISSES 16 || Plaintiff's complaint without leave to amend, (Doc. No. 1). Leave to amend is to be given 17 || freely. Fed. R. Civ. P. 15(a)(2). However, it is properly denied when amendment would be 18 || futile. See Carrico v. City & Cnty. Of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2001). 19 || Here, the Court finds that amendment would be futile. Accordingly, the Court DIRECTS 20 Clerk of Court to CLOSE this case. 21 IT IS SO ORDERED. 22 53 ||Dated: July 20, 2020 Gg tte i Hon. Anthony J.Battaglia United States District Judge 25 26 27 28