Finnegan v. Sojourn LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SEAN MATTHEW FINNEGAN, Case No.: 21cv609 DMS (WVG) 12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 14 SOJOURN LLC, NICOLE PACE, AND (2) DISMISSING COMPLAINT 15 Defendants. 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 Plaintiff, a non-prisoner proceeding pro se, has submitted a form Complaint along 20 with a request to proceed in forma pauperis (“IFP”). 21 A. Motion to Proceed IFP 22 All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 25 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 28 1 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 2 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 3 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999); Escobedo v. Applebees, 787 F.3d 4 1226, 1234 (9th Cir. 2015) (internal quotation marks and citations omitted). 5 Here, Plaintiff’s affidavit indicates he has no assets and his sole source of income is 6 $287 per month from CalFresh. (ECF No. 2.) Plaintiff reports no monthly expenses, but 7 states Defendant “caused Plaintiff to become homeless and bankrupt.” (Id.) This Court 8 finds Plaintiff’s affidavit of assets is sufficient to show he is unable to pay the fees or post 9 securities required to maintain this action. See Civil Local Rule 3.2(a). Accordingly, the 10 Court grants Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 11 B. Sua Sponte Screening 12 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 13 any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and 14 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 15 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 16 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 17 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 18 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc). 28 U.S.C. 19 § 1915(e)(2) mandates that the court reviewing a complaint filed pursuant to the IFP 20 provisions of section 1915 make and rule on its own motion to dismiss before directing 21 that the complaint be served by the U.S. Marshal pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 22 203 F.3d 1127 (“[S]ection 1915(e) not only permits, but requires a district court to dismiss 23 an in forma pauperis complaint that fails to state a claim.”); see also Barren v. Harrington, 24 152 F.3d 1193, 1194 (9th Cir. 1998) (noting the “language of § 1915(e)(2)(B)(ii) parallels 25 the language of Federal Rule of Civil Procedure 12(b)(6)”). 26 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does 28 1 Here, Plaintiff alleges he entered a lease agreement with “the defendant,” after which 2 || “the defendant entered the residence, stole all property and changed door codes,” and began 3 || harassing Plaintiff. ECF No. 1 at 4.) Plaintiff alleges this caused him to become homeless 4 his corporation to go bankrupt. (/d.) Plaintiff does not specify where the alleged events 5 ||occurred. Based on these alleged facts, Plaintiff seeks $5 million in damages, the return of 6 || his property, and an emergency protection order. (/d.) 7 However, the basis for Plaintiff’s claims is unclear. Plaintiff cites 41 U.S.C. § 6503 8 ||as a basis for federal jurisdiction, but that section, which governs contracts made by an 9 ||agency of the United States, is inapplicable here. See 41 U.S.C. §§ 6503(a), 6502. 10 Although Plaintiff claims breach of contract, he fails to plead any facts regarding the 11 alleged contract. Absent a “short and plain statement of the claim showing that the pleader 12 entitled to relief,” Fed. R. Civ. P. 8(a)(2), Plaintiff’s Complaint is subject to sua sponte 13 || dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). 14 CONCLUSION 15 For the foregoing reasons, Plaintiff’s Motion to Proceed IFP is GRANTED and the 16 |}Complaint is DISMISSED without prejudice for failure to state a claim. 17 IT ISSO ORDERED. 18 19 || Dated: April 28, 2021 » gf, p 0 a Yn: 51 Hon. Dana M. Sabraw, Chief Judge United States District Court 22 23 24 25 26 27 28