Macovichuk v. United States

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 22cv1812 DMS (BGS) MICHAEL MACOVICHUK, 11 Plaintiff, ORDER (1) GRANTING 12 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 13 UNITED STATES OF AMERICA, AND (2) DISMISSING COMPLAINT 14 Defendant. WITHOUT PREJUDICE FOR 15 FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE 16 GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 17 18 Plaintiff, a non-prisoner proceeding pro se, has submitted a Complaint along with a 19 request to proceed In Forma Pauperis. 20 Motion to Proceed IFP 21 All parties instituting any civil action, suit or proceeding in a district court of the 22 United States, except an application for writ of habeas corpus, must pay a filing fee of 23 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 24 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 25 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). This Court 26 finds Plaintiff’s affidavit of assets is sufficient to show he is unable to pay the fees or post 27 securities required to maintain this action. See Civil Local Rule 3.2(d). Accordingly, the 28 Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 1 Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) 2 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 3 any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and 4 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 5 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 6 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 7 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 8 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Prior to 9 its amendment by the Prison Litigation Reform Act, the former 28 U.S.C. § 1915(d) 10 permitted sua sponte dismissal of only frivolous and malicious claims. Id. at 1130. The 11 newly enacted 28 U.S.C. § 1915(e)(2), however, mandates that the court reviewing a 12 complaint filed pursuant to the IFP provisions of section 1915 make and rule on its own 13 motion to dismiss before directing that the complaint be served by the U.S. Marshal 14 pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d 1127 (“[S]ection 1915(e) not only 15 permits, but requires a district court to dismiss an in forma pauperis complaint that fails to 16 state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting 17 the “the language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil 18 Procedure 12(b)(6).”). 19 Here, Plaintiff’s Complaint consists of four pages that are mostly blank. Under the 20 “Statement of Claim” section of the form, the only thing he states is, “Unsecure in person, 21 property, places due to State’s, agencies, officials, etc.” (Compl. at 2.) There are no other 22 factual allegations, and no legal claims identified. Under these circumstances, Plaintiff’s 23 complaint is subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). 24 Conclusion and Order 25 / / / 26 / / / 27 / / / 28 / / / 1 For these reasons, IT IS HEREBY ORDERED that Plaintiff's Motion to Proceed 2 || IFP is GRANTED and the Complaint is DISMISSED without prejudice for failure to state 3 ||aclaim.' 4 IT IS SO ORDERED. 5 ||Dated: December 19, 2022 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.