1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 22cv1782 DMS (BLM) ROBERT HEIZELMAN, 11 Plaintiff, ORDER (1) GRANTING MOTION 12 v. TO PROCEED IN FORMA PAUPERIS, (2) DISMISSING 13 SAN DIEGO POLICE DEPARTMENT; COMPLAINT WITHOUT SHERIFF’S OFFICE; DEA; and JOHN 14 PREJUDICE FOR FAILING TO DOES, STATE A CLAIM UPON WHICH 15 Defendants. RELIEF CAN BE GRANTED 16 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B), AND (3) DENYING 17 MOTION FOR APPOINTMENT OF 18 COUNSEL 19 20 On November 14, 2022, Plaintiff Robert Heizelman, proceeding pro se, filed the 21 present case in this Court. In the Complaint, Plaintiff alleges he is being harassed by the 22 “cops.” Specifically, he alleges the cops singled him out multiple times to move his tent,1 23 ticketed his vehicle multiple times, towed his vehicle and searched his car illegally, planted 24 drugs outside his shower at the gym, and hired people to film him while he was at the gym. 25 26 27 1 Based on the Complaint as a whole, it appears Plaintiff was homeless at the time of the 28 1 Along with the Complaint, Plaintiff filed a motion to proceed in forma pauperis (“IFP”), 2 and a motion for appointment of counsel. 3 Motion to Proceed IFP 4 Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of a suit 5 without prepayment of fees if the plaintiff submits an affidavit, including a statement of all 6 his assets, showing that he is unable to pay filing fees. See 28 U.S.C. § 1915(a). Plaintiff 7 has submitted an affidavit which sufficiently shows that he lacks the financial resources to 8 pay filing fees. Accordingly, his motion to proceed IFP is granted. 9 Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 10 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 11 any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and 12 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 13 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 14 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 15 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 16 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Prior to 17 its amendment by the Prison Litigation Reform Act, the former 28 U.S.C. § 1915(d) 18 permitted sua sponte dismissal of only frivolous and malicious claims. Id. at 1130. The 19 newly enacted 28 U.S.C. § 1915(e)(2), however, mandates that the court reviewing a 20 complaint filed pursuant to the IFP provisions of section 1915 make and rule on its own 21 motion to dismiss before directing that the complaint be served by the U.S. Marshal 22 pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d 1127 (“[S]ection 1915(e) not only 23 permits, but requires a district court to dismiss an in forma pauperis complaint that fails to 24 state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting 25 the “the language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil 26 Procedure 12(b)(6).”). 27 As stated above, Plaintiff here alleges a campaign of harassment by the cops, for 28 which he apparently seeks injunctive relief and compensatory and punitive damages. 1 || Although Plaintiff's Complaint includes several pages of factual allegations, he fails to 2 ||identify the legal basis for his Complaint, and he fails to specify which Defendant agency 3 || or individual was involved in each of the alleged instances of harassment. Absent this 4 ||information, Plaintiff's Complaint is subject to dismissal pursuant to 28 U.S.C. § 1915A(b). 5 || Conclusion and Order 6 In light of the above, IT IS HEREBY ORDERED: 7 1. Plaintiff's motion to proceed IFP is granted. 8 Plaintiff's Complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 9 1915A(b). Plaintiff is granted leave to file a First Amended Complaint that cures the 10 || pleading deficiencies set out above. Plaintiff's First Amended Complaint, should he elect 11 ||to file one, must be filed no later than January 13, 2023. 12 In light of the rulings above, Plaintiffs motion for appointment of counsel is denied 13 || without prejudice as moot. 14 ||Dated: December 19, 2022 15 am bl 16 Hon. Dana M. Sabraw, Chief Judge United States District Court 17 18 19 20 21 22 23 24 25 26 27 28