Cuttino Jr. v. Walmart Western Union

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 MAURICE CUTTINO JR., Case No. 23-cv-1111-BAS-JLB 11 Plaintiff, ORDER: 12 v. 1. GRANTING MOTION FOR 13 WALMART WESTERN UNION, LEAVE TO PROCEED IN 14 FORMA PAUPERIS (ECF No. 3); Defendant.

15 2. SCREENING PURSUANT TO 16 28 U.S.C. § 1915(E); AND 17 3. DENYING AS MOOT MOTION 18 TO APPOINT COUNSEL (ECF 19 No. 2) 20 21 Plaintiff Maurice Cuttino Jr., proceeding pro se, files this action against Defendant 22 Walmart Western Union. The Complaint alleges violations of the Privacy Act of 1974, 23 “First Amendment defamation,” slander, “seditious libel,” and fraud. (Compl. 2–4, ECF 24 No. 1.) Plaintiff also files an application seeking leave to proceed without prepaying fees 25 or costs, also known as proceeding in forma pauperis (“IFP”), (IFP Mot., ECF No. 3) and 26 a motion to appoint counsel (ECF No. 2). For the reasons discussed below, the Court 27 GRANTS Plaintiff’s application to proceed IFP (ECF No. 3), DISMISSES Plaintiff’s 1 Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and DENIES AS MOOT Plaintiff’s 2 motion to appoint counsel (ECF No. 2). 3 I. APPLICATION FOR LEAVE TO PROCEED IFP 4 Under 28 U.S.C. § 1915, an indigent litigant who is unable to pay the fees required 5 to commence a legal action may petition a court to proceed without making such 6 prepayment. The determination of indigency falls within the district court’s discretion. Cal. 7 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that “Section 1915 8 typically requires the reviewing court to exercise its sound discretion in determining 9 whether the affiant has satisfied the statute’s requirement of indigency”), rev’d on other 10 grounds, 506 U.S. 194 (1993). 11 It is well-settled that a party need not be completely destitute to proceed in forma 12 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To 13 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 14 which states that one cannot because of his poverty pay or give security for costs . . . and 15 still be able to provide himself and dependents with the necessities of life.” Id. at 339 16 (internal quotations omitted). At the same time, however, “the same even-handed care must 17 be employed to assure that federal funds are not squandered to underwrite, at public 18 expense, . . . the remonstrances of a suitor who is financially able, in whole or in material 19 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 20 District courts, therefore, tend to reject IFP applications where the applicant can pay 21 the filing fee with acceptable sacrifice to other expenses. See, e.g., Olivares v. Marshall, 22 59 F.3d 109, 111–12 (9th Cir. 1995) (finding that a district court did not abuse its discretion 23 in requiring a partial fee payment from a prisoner who had a $14.61 monthly salary and 24 who received $110 per month from family). The facts as to the affiant’s poverty must be 25 stated “with some particularity, definiteness, and certainty.” United States v. McQuade, 26 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 27 (9th Cir. 1960)). 1 Having read and considered Plaintiff’s application, the Court finds that he meets the 2 requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff has no income other than social 3 security payments for disability totaling $1,133 and child support totaling $37.50 per 4 month. (IFP Mot. ¶ 1.) He lists monthly expenses totaling $957.30. (Id. ¶¶ 1, 8.) He does 5 not own an automobile, real estate, or any other significant asset, and his savings consists 6 of $93.04 in cash. (Id. ¶¶ 4, 5.) Under these circumstances, the Court finds that requiring 7 Plaintiff to pay the court filing fees would impair his ability to obtain the necessities of life. 8 See Adkins, 335 U.S. at 339. Accordingly, the Court GRANTS Plaintiff’s application to 9 proceed IFP. 10 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 11 Under 28 U.S.C. § 1915(e)(2)(B)(ii), the court must dismiss an action where the 12 plaintiff is proceeding IFP if the court determines that the complaint “fails to state a claim 13 on which relief may be granted.” “The standard for determining whether a plaintiff has 14 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 15 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 16 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint 17 to “contain sufficient factual matter, accepted as true, to state a claim to relief that is 18 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A court 19 must accept all factual allegations pleaded in the complaint as true and must construe them 20 and draw all reasonable inferences in favor of the nonmoving party. See Cahill v. Liberty 21 Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). Detailed factual allegations are not 22 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 24 In this case, Plaintiff offers few factual allegations. As far as the Court can discern, 25 when Plaintiff attempted to receive money from his mother through Defendant Walmart 26 Western Union, one of Defendant’s employees requested Plaintiff’s “ID and tracking 27 number,” which “he did not need [] from [Plaintiff’s] possession.” (Compl. 2.) The employee then “proceeded to type into the computer as unadvised by law.” (Id.) Based on 1 these factual allegations, Plaintiff claims violations of the Privacy Act of 1974, “First 2 Amendment defamation,” slander, “seditious libel,” and fraud. (Id. at 2–4.) Plaintiff 3 requests a billion dollars in damages. (Id. at 4.) 4 The Privacy Act of 1974 governs the record-keeping practices of federal agencies. 5 See, e.g., 5 U.S.C. § 552a (“No agency shall disclose any record which is contained in a 6 system of records by any means of communication to any person, or to another agency, 7 except pursuant to a written request by, or with the prior written consent of, the individual 8 to whom the record pertains . . . .”). The Defendant in this case is a private company, and 9 nothing in the Complaint suggests any government involvement. Accordingly, the Privacy 10 Act of 1974 does not apply to Defendant. See Proctor v. Educ. Credit Mgmt. Corp., No. 11 2:07-CV-839, 2010 WL 3168079, at *4 (S.D. Ohio Aug. 10, 2010) (“Therefore 5 U.S.C. § 12 522a only applies if Wells Fargo or ECMC were government contractors used by a 13 governmental agency to perform an agency function.”). 14 Plaintiff’s other claims are not supported by the allegations. Both defamation, which 15 includes slander and libel, and fraud require a plaintiff to allege the falsity of the 16 defendant’s statements. See Taus v. Loftus, 40 Cal. 4th 683, 720 (2007) (defamation); 17 Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990 (2004) (fraud). The 18 Complaint does not make clear what false statements, if any, Defendant made in this case. 19 Thus, the Complaint fails to state a claim upon which relief may be granted. The 20 Court accordingly DISMISSES WITHOUT PREJUDICE the action pursuant to 28 21 U.S.C. § 1915(e)(2)(B)(ii). 22 III. CONCLUSION 23 In light of the foregoing, the Court GRANTS Plaintiff’s application to proceed IFP 24 (ECF No. 3). Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court DISMISSES 25 WITHOUT PREJUDICE Plaintiff’s Complaint. The Court GRANTS Plaintiff leave to 26 amend. If Plaintiff so chooses, he must file an amended complaint on or before August 27 18, 2023. In addition, the Court DENIES AS MOOT Plaintiff’s motion to appoint counsel 1 ||(ECF No. 2). If Plaintiff chooses to file an amended complaint, he may refile his motion to 2 appoint counsel. 3 IT IS SO ORDERED. 4 é fl 5 || DATED: July 31, 2023 Lp g (Mp hats 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28