Girley v. Ratekin ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEDRICK LAMONT GIRLEY, Case No.: 3:20-cv-01930-WQH-AHG 12 Plaintiff, ORDER 13 v. 14 PATTI C. RATEKIN, Commissioner, North County 15 Division, Department 19, 16 Defendant. 17 HAYES, Judge: 18 The matter before the Court is the Motion for Leave to Proceed in Forma Pauperis 19 filed by Plaintiff Dedrick Lamont Girley. (ECF No. 2). 20 I. PROCEDURAL BACKGROUND 21 On September 28, 2020, Plaintiff Dedrick Lamont Girley initiated this action by 22 filing a Complaint against Defendant Patti C. Ratekin. (ECF No. 1). On the same day, 23 Plaintiff filed a Motion for Leave to Proceed in Forma Pauperis (“Motion for Leave to 24 Proceed IFP”). (ECF No. 2). 25 II. MOTION FOR LEAVE TO PROCEED IFP (ECF NO. 2) 26 All parties instituting a civil action, suit, or proceeding in a district court of the 27 United States, other than a petition for writ of habeas corpus, must pay a filing fee of 28 1 $400.00. See 28 U.S.C. § 1914(a); CivLR 4.5. An action may proceed despite a party’s 2 failure to pay only if the party is granted leave to proceed in forma pauperis pursuant to 28 3 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To 4 proceed in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 5 (9th Cir. 1965). 6 Plaintiff states in his application to proceed in forma pauperis that he is “unable to 7 pay the costs of these proceedings . . . .” (ECF No. 2 at 1). Plaintiff states that he receives 8 an average monthly income of $1,707.17 and expects to receive $1,686.69 next month. See 9 id. at 2. Plaintiff states that, during the past 12 months, he has received income from self- 10 employment, interest and dividends, and disability. See id. at 1-2. Plaintiff states that he 11 receives $1,421.63 in gross monthly pay. See id. at 2. Plaintiff states that he has $136.00 12 in cash, $80.50 in a Union Bank of California checking account, and $35.73 in a Navy 13 Federal Credit Union checking account. See id. Plaintiff states that he owns a motor 14 vehicle valued at $1,000.00. See id. at 3. Plaintiff lists as dependents two minor children. 15 See id. Plaintiff states that his total monthly expenses are $2,392.05. See id. at 5. Plaintiff 16 states that he is “currently homeless.” Id. After considering Plaintiff’s application, the 17 Court determines that Plaintiff cannot afford to pay the filing fee in this case and is eligible 18 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). 19 III. INITIAL SCREENING OF THE COMPLAINT (ECF NO. 1) 20 The determination of whether a party may proceed in forma pauperis does not 21 complete the inquiry. The court is also required to screen cases filed by parties proceeding 22 in forma pauperis. 28 U.S.C. § 1915(e)(2) states that 23 (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-- 24 (A) the allegation of poverty is untrue; or 25 (B) the action or appeal-- (i) is frivolous or malicious; 26 (ii) fails to state a claim on which relief may be granted; or 27 (iii) seeks monetary relief against a defendant who is immune from such relief. 28 1 28 U.S.C. § 1915(e)(2). “The purpose of [screening] is to ensure that the targets of 2 frivolous or malicious suits need not bear the expense of responding.” Nordstrom v. Ryan, 3 762 F.3d 903, 907 n.1 (9th Cir. 2014). The standard used to evaluate whether a complaint 4 states a claim is a liberal one, particularly when the action has been filed pro se. See Estelle 5 v. Gamble, 429 U.S. 97, 106 (1976). “However, a liberal interpretation . . . may not supply 6 elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 7 673 F.2d 266, 268 (9th Cir. 1982). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 11 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain sufficient 12 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Detailed factual allegations are not required 14 but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. “[T]he mere possibility of misconduct” or “an 16 unadorned, the defendant-unlawfully-harmed me accusation” falls short of meeting this 17 plausibility standard. Id. at 678-79. “Determining whether a complaint states a plausible 18 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on 19 its judicial experience and common sense.” Id. at 679. 20 Plaintiff alleges that Defendant has violated 18 U.S.C. § 247 (damage to religious 21 property; obstruction of persons in the free exercise of religious beliefs) and Plaintiff’s 22 Second, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. See ECF No. 1 at 3. 23 Plaintiff alleges that 24 Defendant failed to abide by California Rules of Court 5.210(e)(6) and 25 designate an agency to perform an investigation into allegations of child 26 abuse. Defendant failed to follow Family Code 3027 and deprived me of remedy under Family Code 3027.1. Furthermore, Defendant failed to 27 memorandum of law explaining her rulings. Defendant failed to be fair and 28 1 impartial when she called my witness and me a liar and stated, “The only opinion that matters in this courtroom is mine.” 2 Id. at 4. Plaintiff further alleges that 3 I was served with divorce papers on 27 March 2019 . . . . I attended FCS 4 mediation on 18 April 2019. Child abuse was alleged. FCS report was submitted to the court on 22 April 2019. No investigation was order. At every 5 hearing, from 9 May 2019 to 14 September 2020, I requested an investigation 6 into the child abuse allegations. Commissioner Patti C. Ratekin refused. On 16 May 2019, I received a Temporary Restraining Order / Move out Order. I 7 have been homeless since 16 May 2019. I was ordered to deliver my firearm 8 to Carlsbad Police Department, which I did. I was order to stay 100 years away from Julia Girley, my two younger children, and 2 cats. Due to the 9 restraining order, I can no longer attend church services. Commissioner Patti 10 C. Ratekin called my witness and me a liar and stated, “The only opinion that matters in this courtroom is mine.” Commissioner Ratekin made child 11 custody and support orders in error and without benefit of an investigation 12 into child abuse allegation. 13 Id. Plaintiff further alleges that 14 [B]eing restrained from my home and business has injured me financially. 15 Being restrained from my children has injured me mentally. My children are continuing to grow up without me. I can’t get that time back. 16 17 Id. at 5. Plaintiff further alleges that 18 I want all of Commissioner Ratekin’s order set aside. I want $1,000,000 in punitive damages for the violations of my constitutional rights and the rights 19 of my children. I want the investigation into the child abuse allegation. After 20 the investigating agency submits it’s findings to the court, the divorce can proceed. 21 22 Id. 23 Plaintiff fails to allege facts to support the allegations that Defendant has violated 18 24 U.S.C. § 247 (damage to religious property; obstruction of persons in the free exercise of 25 religious beliefs) or Plaintiff’s Second, Fifth, Sixth, Eighth, and Fourteenth Amendment 26 rights. Plaintiff fails to sufficiently allege causes of action pursuant to federal law. The 27 Court finds that the Plaintiff’s “allegations are conclusory and not entitled to be assumed 28 1 true.” Igbal, 556 U.S. at 681. The Court concludes that Plaintiff fails to allege facts to 2 || state a claim against Defendant Patti C. Ratekin. 3 IV. CONCLUSION 4 IT IS HEREBY ORDERED that the Motion for Leave to Proceed in Forma Pauperis 5 || filed by Plaintiff Dedrick Lamont Girley (ECF No. 2) is GRANTED. 6 IT IS FURTHER ORDERED that the Complaint (ECF No. 1) is DISMISSED 7 || without prejudice for failure to state a claim upon which relief can be granted. Plaintiff 8 || Dedrick Lamont Girley may file a Motion to File an Amended Complaint within sixty (60) 9 || says of the date of this Order. If no motion is filed, the Clerk of the Court shall close this 10 |} case. 11 || Dated: October 1, 2020 BE: te Z. A a 12 Hon, William Q. Hayes 13 United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28