1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 ROBERT HEIZELMAN, Case No.: 22-CV-1674-CAB-DDL 9 Plaintiff, ORDER GRANTING MOTION TO 10 v. PROCEED IN FORMA PAUPERIS, AND DISMISSING CASE WITHOUT 11 SAN DIEGO POLICE DEPT., et al., PREJUDICE 12 Defendants. [Doc. Nos. 1, 2, 3] 13 14 On October 27, 2022, Plaintiff Robert Heizelman filed a Complaint [Doc. No. 1] 15 against the San Diego Police Department, the San Diego Sheriff’s Office, and 16 unidentified officers demanding $10,000,000 and punitive damages for alleged civil 17 rights violations. Plaintiff also filed a Motion to Appoint Counsel [Doc. No. 3]. Plaintiff 18 did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time of filing; 19 instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 20 1915(a). [Doc. No. 2.] For the reasons mentioned below, the IFP is GRANTED, the 21 Complaint is DISMISSED without prejudice, and the Motion to Appoint Counsel is 22 DENIED as moot. 23 24 I. Motion to Proceed IFP 25 Generally, all parties instituting a civil action in this court must pay a filing fee. See 26 28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may 27 authorize the commencement, prosecution, or defense of any suit without payment of fees 28 1 if the plaintiff submits an affidavit, including a statement of all his or her assets, showing 2 that he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP 3 application is sufficient where it alleges that the affiant cannot pay the court costs and still 4 afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 5 “[A] plaintiff seeking IFP status must allege poverty with some particularity, definiteness 6 and certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to 7 proceed IFP in civil cases is within the sound discretion of the district court. Venerable v. 8 Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted). 9 Here, Plaintiff represents that he is homeless and his sole monthly income from 10 social security disability benefits is $1,100 per month. He also indicates that he has no 11 checking or savings account, and the only assets he owns are two cars worth $2,000 each. 12 Plaintiff’s application sufficiently shows that he lacks the financial resources to pay filing 13 fees. Accordingly, Plaintiffs’ Motion to Proceed IFP is GRANTED. 14 15 II. Screening of the Complaint Pursuant to 42 U.S.C. § 1915(e)(2)(B) 16 Upon granting a request to proceed IFP, the Court must additionally analyze the 17 sufficiency of the complaint under 28 U.S.C § 1915. A complaint filed by any person 18 seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua sponte dismissal 19 if it is “frivolous or malicious; fails to state a claim upon which relief may be granted; or 20 seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 21 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 22 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); see also Chavez v. Robinson, 817 23 F.3d 1162, 1167-68 (9th Cir. 2016) (noting that § 1915(e)(2)(B) “mandates dismissal— 24 even if dismissal comes before the defendants are served”). Congress enacted this 25 safeguard because “a litigant whose filing fees and court costs are assumed by the public, 26 unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, 27 malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting 28 Neitzke v. Williams, 490 U.S. 319, 324 (1989)). 1 Here, Plaintiff's Complaint fails to state a claim upon which relief may be granted. 2 Complaint appears to object to various attempts by the Defendants to remove Plaintiff 3 ||from the areas in which he was living in his tent and car, but it is unclear what laws or 4 rights Plaintiff claims were violated or infringed, or why Plaintiff is entitled to relief from 5 ||the Court. It is also unclear which Defendants caused specific harms to Plaintiff. 6 || Accordingly, the Complaint must be dismissed. Anderson v. Sy, 486 F. App’x 644 (9th 7 || Cir. 2012) (“The district court properly dismissed [the lawsuit] as frivolous because the 8 complaint contains indecipherable facts and unsupported legal assertions.”); Adams v. FBI] 9 || San Francisco Field Office Supervisor & Agents, No. 19-CV-02977-YGR (PR), 2019 WL 10 5626261, at *1 (N.D. Cal. Oct. 31, 2019) (“A claim that is totally incomprehensible may 11 dismissed as frivolous as it is without an arguable basis in law.’’). For these reasons, the 12 ||Complaint is DISMISSED without prejudice. 13 14 II. Conclusion 15 In light of the foregoing, it is hereby ORDERED that the application to proceed in 16 ||forma pauperis is GRANTED [Doc. No. 2], and the Complaint is DISMISSED pursuant 17 || to 28 U.S.C. § 1915(e)(2)(B) [Doc. No. 1]. In light of this dismissal, the Motion to Appoint 18 || Counsel is DENIED as moot [Doc. No. 3]. 19 Plaintiff shall have until December 9, 2022 to file an amended complaint under this 20 |/case number resolving the issues discussed above. If Plaintiff does not file an amended 21 |}complaint by December 9, 2022, the Clerk of the Court shall dismiss the case without 22 || prejudice and terminate the action. 23 It is SO ORDERED. 24 25 ||Dated: November 1, 2022 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28