Ward v. State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JASON WARD, Case No.: 21cv0364 DMS (AHG)

12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 14 STATE OF CALIFORNIA, AND (2) DISMISSING COMPLAINT 15 Defendant. WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM 16 UPON WHICH RELIEF CAN BE 17 GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 18 19 20 Plaintiff, a non-prisoner proceeding pro se, has submitted a Complaint along with a 21 request to proceed In Forma Pauperis and a request for appointment of counsel. 22 Motion to Proceed IFP 23 All parties instituting any civil action, suit or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 $402. See 28 U.S.C. § 1914(a); Civil Local Rule 4.5. An action may proceed despite a 26 plaintiff’s failure to prepay the entire fee only if the plaintiff is granted leave to proceed 27 IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th 28 Cir. 1999). This Court finds Plaintiff’s affidavit of assets is sufficient to show he is unable 1 to pay the fees or post securities required to maintain this action. See Civil Local Rule 2 3.2(d). Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 3 U.S.C. § 1915(a). 4 Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) 5 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 6 any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and 7 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 8 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 9 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 10 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 11 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Prior to 12 its amendment by the Prison Litigation Reform Act, the former 28 U.S.C. § 1915(d) 13 permitted sua sponte dismissal of only frivolous and malicious claims. Id. at 1130. The 14 newly enacted 28 U.S.C. § 1915(e)(2), however, mandates that the court reviewing a 15 complaint filed pursuant to the IFP provisions of section 1915 make and rule on its own 16 motion to dismiss before directing that the complaint be served by the U.S. Marshal 17 pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d 1127 (“[S]ection 1915(e) not only 18 permits, but requires a district court to dismiss an in forma pauperis complaint that fails to 19 state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting 20 the “the language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil 21 Procedure 12(b)(6).”). 22 Here, Plaintiff complains that the State of California is (1) forcing him to make child 23 support payments to the mother of his child, (2) violating his “civil rights to be a father to 24 [his] son and probably [his] daughter[,]” (3) refusing to allow him to have a paternity test 25 for another child, and (4) refusing to protect him from the mother of his child. To the 26 extent Plaintiff is attempting to allege a constitutional claim against the State of California, 27 which is the only named Defendant in this case, any such claim is barred by the Eleventh 28 Amendment. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 120 (1984). 1 || Conclusion and Order 2 In light of the above, Plaintiff's Motion to Proceed IFP is GRANTED and the 3 Complaint is DISMISSED without prejudice for failure to state a claim.! 4 IT IS SO ORDERED. 5 Dated: May 21, 2021 em Dh 6 a Yn. Hon. Dana M. Sabraw, Chief Judge United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 |.

9g ||' In light of this ruling, Plaintiff's request for appointment of counsel is denied.