Anthony v. San Diego Police Department

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 BRIAN KEITH ANTHONY Case No.: 20-CV-2333-CAB-DEB 8 Plaintiff, ORDER DENYING APPLICATION 9 v. FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND 10 SAN DIEGO POLICE DEPARTMENT et DISMISSING CASE WITHOUT al., 11 PREJUDICE Defendants. 12 [Doc. Nos. 2, 3] 13 14 This matter is before the Court on Plaintiff’s application for leave to proceed in 15 forma pauperis (“IFP”). “An affidavit in support of an IFP application is sufficient where 16 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 17 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking IFP 18 status must allege poverty with some particularity, definiteness and certainty.” Id. (internal 19 quotation marks omitted). Here, Plaintiff’s application states that Plaintiff has a monthly 20 income of $7,000.00, with monthly expenses of just $600.00. Because Plaintiff is able to 21 pay the filing fee and “still afford the necessities of life,” the IFP application is denied. 22 Moreover, even if Plaintiff had established entitlement to proceed IFP, his complaint 23 would be subject to dismissal. A complaint filed by any person seeking to proceed IFP 24 pursuant to 28 U.S.C. § 1915(a) is subject to mandatory and sua sponte review and 25 dismissal should the Court determine, inter alia, it is frivolous, malicious, or fails to state 26 a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 27 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not 28 limited to prisoners.”). Congress enacted this safeguard because “a litigant whose filing 1 || fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic 2 ||incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. 3 || Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 4 ||(1989)); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection □□□□□□□ 5 ||not only permits, but requires a district court to dismiss an in forma pauperis complaint that 6 || fails to state a claim.’’). 7 Here, the complaint is largely incomprehensible and therefore is frivolous and fails 8 state a claim upon which relief can be granted. The complaint appears to object generally 9 ||to the presence of security or the police department around his apartment complex, but it 10 unclear what laws or rights Plaintiff claims were violated or infringed, or why Plaintiff 11 entitled to relief from the Court,. Accordingly, even if Plaintiff is entitled to proceed 12 || IFP, the complaint must be dismissed. Anderson v. Sy, 486 F. App’x 644 (9th Cir. 2012) 13 ||(“The district court properly dismissed [the lawsuit] as frivolous because the complaint 14 ||contains indecipherable facts and unsupported legal assertions.”); Adams v. FBI San 15 || Francisco Field Office Supervisor & Agents, No. 19-CV-02977-YGR (PR), 2019 WL 16 ||5626261, at *1 (N.D. Cal. Oct. 31, 2019) (“A claim that is totally incomprehensible may 17 || be dismissed as frivolous as it is without an arguable basis in law.”’). 18 In light of the foregoing, it is hereby ORDERED that the application to proceed in 19 ||forma pauperis is DENIED [Doc. No. 2], and the complaint is DISMISSED pursuant to 20 U.S.C. § 1915(e)(2)(B). In light of this dismissal, the motion to appoint counsel [Doc. 21 || No. 3] is DENIED as well. Further, this Court certifies that any IFP appeal from this Order 22 || would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). The Clerk of Court 23 CLOSE this case. 24 It is SO ORDERED. 25 Dated: December 1, 2020 i 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28