Tcheumani Jr v. Black

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GERARD C. TCHEUMANI, JR., Case No. 22-cv-1344-BAS-WVG 12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION 14 ARS NATIONAL SERVICES, et al., TO PROCEED IN FORMA 15 Defendants. PAUPERIS (ECF No. 2); AND 16 (2) DISMISSING ACTION 17 WITHOUT PREJUDICE 18 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 19 20 21 22 Proceeding pro se, Plaintiff Gerard C. Tcheumani, Jr. (“Plaintiff”) brought this civil 23 action against ARS National Services and its Chief Executive Officer James Brandon 24 Black (together, “Defendants”) on September 6, 2022, alleging Defendants violated 25 various credit reporting and debt collection practices acts. (Compl., ECF No. 1.) That 26 same day, Plaintiff also filed an application to proceed in forma pauperis (“IFP”). (IFP 27 App., ECF No. 2.) 28 1 For the reasons set forth below, the Court GRANTS Plaintiff’s IFP Application, 2 DISMISSES without prejudice the Complaint, and GRANTS Plaintiff leave to amend. 3 I. IFP APPLICATION 4 All parties instituting any civil action, suit, or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $402.1 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay 7 the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). 8 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 9 F.3d 1176, 1177 (9th Cir. 1999). 10 Under 28 U.S.C. § 1915, indigency is the benchmark for whether a plaintiff qualifies 11 for IFP status. The determination of indigency falls within the district court’s sound 12 discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that 13 “[s]ection 1915 typically requires the reviewing court to exercise its sound discretion in 14 determining whether the affiant has satisfied the statute’s requirement on indigency”), 15 rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party need not be 16 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 17 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of 18 poverty] is sufficient which states that one cannot because of his poverty pay or give 19 security for costs . . . and still be able to provide himself and the dependents with the 20 necessities of life.” Id. at 339. However, “the same even-handed care must be employed 21 to assure that federal funds are not squandered to underwrite, at public expense, . . . the 22 remonstrances of a suitor who is financially able, in whole or in part, to pull his own oar.” 23 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 fee does not apply to persons granted leave to proceed in 28 1 Here, the Court finds that Plaintiff has shown he cannot afford the filing fee. He has 2 submitted an affidavit demonstrating he has no gainful employment and no funds in either 3 a checking or savings account. Based on the information provided, the Court GRANTS 4 Plaintiff’s IFP Application. 5 II. MANDATORY SCREENING OF PLEADING 6 A. Legal Standard 7 Under 28 U.S.C. § 1915(e), the Court must sua sponte dismiss IFP complaints, or 8 any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek 9 damages from defendants who are immune. 28 U.S.C. §1915(e)(2)(B); see Calhoun v. 10 Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (“The provisions of section 11 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th 12 Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district court to 13 dismiss an [IFP] complaint that fails to state a claim.”); see also Chavez v. Robinson, 817 14 F.3d 1162, 1167–68 (9th Cir. 2016) (noting that § 1915(e)(2)(B) “mandates dismissal— 15 even if dismissal comes before the defendants are served”). 16 Complaints also must comply with Federal Rule of Civil Procedure (“Rule”) 8(a)(2), 17 which requires that each pleading include a “short and plain statement of the claim,” Fed. 18 R. Civ. P. 8(a)(2), and that “each allegation must be simple, concise, and direct,” Fed. R. 19 Civ. P. 8(d)(1). See Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). In addition to the 20 grounds for a sua sponte dismissal set out in § 1915(e)(2)(B), the district court may also 21 dismiss a complaint for failure to comply with Rule 8 if it fails to provide the defendant 22 fair notice of the wrongs allegedly committed. See McHenry v. Renne, 84 F.3d 1172, 1178– 23 80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was “argumentative, 24 prolix, replete with redundancy, and largely irrelevant”); Cafasso, United States ex rel. v. 25 Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (citing cases upholding 26 Rule 8 dismissals where pleadings were “verbose,” “confusing,” distracting, ambiguous, 27 and unintelligible,” “highly repetitious”). 28 // 1 B. Analysis 2 Plaintiff’s Complaint is incredibly unclear. He alleges: 3 1) Plaintiff introduced fraud and violations to defendant, including lack of full disclosure, including providing terms and definitions. Defendant[s] 4 ha[ve] failed to respond to all affidavits and notices of claims that were 5 sent certified mail [sic] via the United States Postal Service. 6 2) Defendant was provided the opportunity to [s]tate a claim or to remain 7 silent and to agree with all terms set forth in the unresponded [sic], unrebutted certified Notice of Liability, Notice of Fault and Opportunity 8 to Cure the Notice of Default and Imminent Liability, which include a 9 Request for Admissions and a True Bill containing said violations. 10 (Compl. at 4.) 11 It is not at all clear how Plaintiff was allegedly wronged or how those alleged 12 wrongs are fairly traceable to any Defendant’s conduct. Simply put, the Complaint fails to 13 give Defendants “fair notice of what [P]laintiff’s claim is and the grounds upon which it 14 rests in order to enable [Defendants] to prepare an answer . . ., and to identify the nature of 15 this case.” Isidro Mejia v. New York Police Dep’t, 1:16-cv-9706-GHW, 2019 WL 3412151, 16 at *7 (S.D.N.Y. July 28, 2019) (quoting Middleton v. United States, 2012 WL 394559, at 17 *2 (E.D.N.Y. Feb. 7, 2012)); accord Clark v. Mayfield, 74 A.F.T.R.2d 94-7323 (S.D. Cal. 18 Nov. 21, 1994) (“[F]ederal courts repeatedly have required a plaintiff suing multiple 19 defendants to set forth sufficient facts to lay a foundation for recovery against each 20 particular defendant named in the suit.” (citing Morabito v. Blum, 528 F. Supp. 252, 262 21 (S.D.N.Y. 1981)). For these reasons, Plaintiff’s Complaint fails to comply with Rule 8 22 and, therefore, is DISMISSED. 23 * * * * 24 Having concluded the Complaint warrants dismissal under 28 U.S.C. § 1915(e) and 25 Rule 8, the Court must determine whether that dismissal should be with prejudice. Because 26 the Court cannot say at this time there is no merit to the underlying action, it GRANTS 27 28 1 || Plaintiff an opportunity to amend. Cf Lopez, 203 F.3d at 1228 n.8 (noting that only where 2 || there is “no merit to the underlying action” should dismissal be with prejudice). 3 CONCLUSION 4 For the foregoing reasons, the Court: 5 1) GRANTS Plaintiff's IFP Application (ECF No. 2); 6 2) DISMISSES without prejudice the Complaint for failure to state a claim 7 pursuant to 28 U.S.C. § 1915(e)(2)(B) (ECF No. 1); and 8 3) GRANTS Plaintiff leave to file an Amended Complaint. If Plaintiff chooses 9 to file an Amended Complaint, he must do so by no later than December 16, 10 2022. 11 IT IS SO ORDERED. / . , 12 || DATED: November 4, 2022 LY A A (Lyohaa é 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28