Taleff v. Sattgast Taleff

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 TONY TALEFF, Case No.: 19cv2066-JAH (LL) 11 Plaintiff, ORDER DENYING MOTION FOR 12 v. LEAVE TO PROCEED IN FORMA PAUPERIS; AND SUA SPONTE 13 MARCIA LYNN SATTGAST TALEFF; DISMISSING PLAINTIFF’S REDONDO BEACH UNIFIED SCHOOL 14 COMPLAINT FOR FAILURE TO DISTRICT, STATE A CLAIM [15] Defendants. [17] INTRODUCTION [18] On October 28, 2019, Plaintiff Tony Taleff (“Plaintiff”), proceeding pro se, filed a [19] complaint along with a motion for leave to proceed in forma pauperis (“IFP”), pursuant to [20] 28 U.S.C. § 1915 (a). See Doc. Nos. 1, 2. After a careful review of the pleadings and for the [21] reasons set forth below, the Court (1) DENIES Plaintiff’s motion for leave to proceed IFP [22] [Doc. No. 2]; and (2) Sua sponte DISMISSES Plaintiff’s complaint [Doc. No. 1], without [23] prejudice. [24] DISCUSSION [25] I. Plaintiff’s IFP Motion [26] All parties instituting any civil action, suit or proceeding in a district court of the [27] United States, except an application for writ of habeas corpus, must pay a filing fee of [28] 1 $400. See 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to proceed IFP when 5 plaintiffs submit an affidavit, including a statement of all of their assets, showing the 6 inability to pay the statutory filing fee. See 28 U.S.C. § 1915 (a). 7 In support of his IFP motion, Plaintiff submitted an application to proceed in this 8 Court without paying fees or costs. See Doc. No. 2. The application states Plaintiff is 9 unemployed and does not receive an income from any source. Id. at 1-2 . Plaintiff reports 10 $2,300.00 in assets and $140.00 in his bank account. Furthermore, Plaintiff lists an average 11 monthly expense of $2,470.00, however, Plaintiff fails to explain how he is able to cover 12 his monthly expenses without an income source. Id. at 4-5 . Based upon the information 13 presented by Plaintiff, the Court is unable to determine whether or not Plaintiff can afford 14 the required filing fee to pursue the instant action. 15 II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915 (e)(2)(B) 16 A. Standard of Review 17 Even if Plaintiff paid the filing fee or had sufficiently demonstrated his indigence, 18 his complaint would still be dismissed. Notwithstanding payment of any filing fee or 19 portion thereof, a complaint filed by any person proceeding in forma pauperis pursuant to [20] 28 U.S.C. § 1915 (a) is subject to a mandatory sua sponte review and dismissal by the court 21 to the extent it is “frivolous, malicious, fail[s] to state a claim upon which relief may be 22 granted, or seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C. 23 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of [24] 28 U.S.C. § 1915 (e)(2)(B) are not limited to prisoners.”). “[S]ection 1915(e) not only 25 permits, but requires, a district court to dismiss an in forma pauperis complaint that fails 26 to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). Here, 27 even assuming that Plaintiff were entitled to proceed IFP, his complaint is subject to 28 dismissal because Plaintiff fails to state a claim upon which relief may be granted. 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 4 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must contain “a 5 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 6 R. Civ. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, 7 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 678 8 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). 9 B. Analysis 10 Upon review of the complaint, the Court struggles to comprehend Plaintiff’s 11 plausible allegations. A complaint is facially plausible when the facts alleged allow “the 12 court to draw reasonable inferences that the defendant is liable for the misconduct alleged.” 13 Ashcroft, 556 U.S. at 678 . Here, Plaintiff’s complaint alleges two causes of action: 42 14 U.S.C § 1985(3) and 42 U.S.C § 1983. 15 Section 1985(3), prohibits conspiracies to interfere with an individual’s civil rights. 16 To state a cause of action, plaintiff must allege: (1) a conspiracy; (2) to deprive any person 17 or class of persons of the equal protection of the laws; (3) an act done by one of the 18 conspirators in furtherance of the conspiracy; and (4) a personal injury, property damage, 19 or deprivation of any right or privilege of a citizen of the United States. Gillispie v. Civiletti, [20] 629 F.2d 637, 641 (9th Cir. 1980). The Ninth Circuit has held that a claim under § 1985 21 must allege specific facts to support the allegation that defendants conspired together. 22 Karim-Panahi, 839 F.2d at 626. A mere allegation of conspiracy without factual specificity 23 is insufficient to state a claim. Id. Here, Plaintiff fails to state a cause of action or claim for 24 relief under Section 1985. Plaintiff’s complaint lists a series of unfortunate events and, as 25 a result, concludes that Defendants have therefore conspired. The alleged facts merely 26 speculate and fail to contain specific facts to state a cognizable conspiracy claim. See 27 Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997) (holding that to state a sufficient 28 claim, plaintiff must plead facts to show how the Defendants conspired and how the 1 conspiracy led to a deprivation of his constitutional rights). Therefore, Plaintiff fails to state 2 a claim on which relief can be granted under 42 U.S. Code § 1985 (3). 3 Section 1983, allows an individual to bring an action for the deprivation of civil 4 rights, which provides in relevant part: “[e]very person, under color of any statute, 5 ordinance, regulation, custom or usage, of any State or Territory or the District of 6 Columbia, subjects, or causes to be subjected, any citizen of the United States or other 7 person within the jurisdiction thereof to the deprivation of any rights, privileges, or 8 immunities secured by the Constitution and laws, shall be liable to the party injured ….” 9 42 U.S.C § 1983. A plaintiff must allege facts from which it may be inferred (1) he was 10 deprived of a federal right, and (2) a person or entity who committed the alleged violation 11 acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, the Court is 12 unable to infer a deprivation of federal right, nor a violation of state law. Plaintiff once 13 again states a series of unfortunate events and circumstances that he has encountered. 14 However, there is no reasoning or explanation as to how these circumstances can give rise 15 to a cause of action or how any of the unfortunate circumstances are related to the named 16 Defendants. Additionally, there have been no facts alleged indicating how either of the 17 named Defendants acted under the color of California law. In fact, the alleged violations, 18 pleaded by Plaintiff, are caused by neither of the Defendants listed in the complaint. 19 Accordingly, Plaintiff fails to state a claim upon which relief can be granted under 42 U.S. 20 Code § 1983. 21 III. Leave to Amend 22 Dismissal of a complaint is appropriate where the complaint fails to state a claim 23 supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 , 24 699 (9th Cir. 1988). However, courts generally grant leave to amend unless amendment 25 would be futile. Townsend v. Univ. Of Alaska, 543 F.3d 478, 485 (9th Cir. 2008). Although 26 the Court has serious doubts in Plaintiff’s ability to state a cognizable claim, the Court will 27 provide Plaintiff with an opportunity to file an amended complaint. Plaintiff must include 28 a short and plain statement that entitles Plaintiff to relief. See Fed. R. Civ. P. 8(a)(2). In 1 || addition, Plaintiff must indicate what relief he is seeking from the Court. See Fed. R. Civ. 2 || P 8(a)(3). 3 CONCLUSION AND ORDER 4 Based on the foregoing, the Court hereby: 5 1. DENIES Plaintiff's Motion to Proceed IFP, pursuant to 28 U.S.C. § 6 1915(a) [Doc No. 2]; 7 2. Sua sponte DISMISSES this action without prejudice due to □□□□□□□□□□ □ 8 failure to state a claim [Doc. No. 1]; and 9 3. Plaintiff may file a First Amended Complaint on or before July 17, 2020. 10 IT IS SO ORDERED. [12] 13 ||} DATED: May 14, 2020 [14] 15 Hgn. John A. Houston 16 Ynited States District Judge