Elebyany v. San Diego Sheriffs Department ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADHAM MAGDY ELEBYANY, Case No.: 20cv2292 DMS (AGS) 12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 14 SAN DIEGO AND (2) DISMISSING COMPLAINT 15 SHERIFF'S Defendants. WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM 16 DEPARTMENT, ET AL, UPON WHICH RELIEF CAN BE 17 GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 18 19 20 21 Plaintiff, a non-prisoner proceeding pro se, has submitted a Complaint along with a 22 request to proceed In Forma Pauperis and a request for appointment of counsel. 23 Motion to Proceed IFP 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $402. See 28 U.S.C. § 1914(a); Civil Local Rule 4.5. An action may proceed despite a 27 plaintiff’s failure to prepay the entire fee only if the plaintiff is granted leave to proceed 28 IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th 1 Cir. 1999). This Court finds Plaintiff’s affidavit of assets is sufficient to show he is unable 2 to pay the fees or post securities required to maintain this action. See Civil Local Rule 3 3.2(d). Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 4 U.S.C. § 1915(a). 5 Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) 6 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 7 any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and 8 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 9 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 10 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 11 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 12 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Prior to 13 its amendment by the Prison Litigation Reform Act, the former 28 U.S.C. § 1915(d) 14 permitted sua sponte dismissal of only frivolous and malicious claims. Id. at 1130. The 15 newly enacted 28 U.S.C. § 1915(e)(2), however, mandates that the court reviewing a 16 complaint filed pursuant to the IFP provisions of section 1915 make and rule on its own 17 motion to dismiss before directing that the complaint be served by the U.S. Marshal 18 pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d 1127 (“[S]ection 1915(e) not only 19 permits, but requires a district court to dismiss an in forma pauperis complaint that fails to 20 state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting 21 the “the language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil 22 Procedure 12(b)(6).”). 23 Here, Plaintiff’s Complaint appears to arise out of a domestic dispute with his 24 girlfriend Defendant Melissa Grajek. Specifically, Plaintiff alleges Ms. Grajek made false 25 accusations against him, which resulted in “multiple unlawful arrests” by Defendant San 26 Diego Sheriff’s Department. (Compl. at 2.) It appears Plaintiff and Ms. Grajek were also 27 involved in a family court dispute, as Plaintiff alleges improper conduct on the part of two 28 1 Diego Superior Court Judges, William Wood and Harry Powacek, and the San Diego 2 || Judicial Committee, all three of which are also named as Defendants. (Id.) 3 To the extent Plaintiff is attempting to allege a claim against the San Diego □□□□□□□□□ 4 || Department, that claim is not plausible. See Richardson v. San Diego Sheriff's Office, No. 5 ||320CV02435DMSJLB, 2021 WL 961652, at *3 (S.D. Cal. Mar. 15, 2021) (finding claim 6 against San Diego Sheriff's Office not plausible because that entity is not a “person acting 7 || under color of state law”). The same reasoning applies to any claim against the San Diego 8 || Judicial Committee. As for any claim against Judge Wood, Plaintiff has not identified the 9 || legal basis for such aclaim. And as for Judge Powacek, it appears he would be absolutely 10 |]immune from any claim based on the facts alleged in the Complaint. See Schucker v. 11 || Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (citing Ashelman vy. Pope, 793 F.2d 1072, 12 (9th Cir. 1986) (“Judges are absolutely immune from damages actions for judicial 13 ||acts taken within the jurisdiction of their courts.”) This leaves only Plaintiffs claims 14 against Ms. Grajek, which appear to be for slander, “making false light accusations,” and 15 || loss of consortium, none of which provides an independent basis for this Court to exercise 16 |} subject matter jurisdiction. 17 || Conclusion and Order 18 In light of the above, Plaintiffs Motion to Proceed IFP is GRANTED and the 19 || Complaint is DISMISSED without prejudice for failure to state a claim.’ 20 IT IS SO ORDERED. 21 ||Dated: May 14, 2021 > 2 a Yn: Hon. Dana M. Sabraw, Chief Judge 23 United States District Court 24 25 26 |. 9g ||' In light of this ruling, Plaintiff's request for appointment of counsel is denied. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28