Opinion
No. 05-0609 CW.
May 19, 2005
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT
On February 10, 2005, Plaintiff Jeremy Curd filed a Title VII form complaint against Defendant Founders but failed to check any boxes in the complaint indicating how Defendant discriminated against him. On April 26, 2005, the Court issued an Order Dismissing Complaint with Leave to Amend, noting that Plaintiff failed to check any boxes in his form complaint, but that in the charge he filed with the California Department of Fair Employment and Housing (FEHA), which Plaintiff attached to his complaint, he indicated that Defendant retaliated against him for engaging in protected activity. The Court also noted that a document attached to the FEHA charge appeared to indicate that Plaintiff was complaining of the denial of worker's compensation from an entity called W.T. Lending. The Court dismissed Plaintiff's complaint with leave to amend for Plaintiff to add specific allegations indicating a claim that coincides with his FEHA charge and explaining how it relates to the document indicating he is alleging a worker's compensation claim against W.T. Lending.
On May 12, 2005, Plaintiff filed a document titled, "Notice of Motion Amend Complaint (Short) Appeal," which the Court construes as Plaintiff's first amended complaint (FAC). The FAC is mostly unintelligible. On the first page of the complaint, the Court has picked out phrases referencing race discrimination, but they do not seem to be directed at Defendant. In the second paragraph, Plaintiff appears to be describing things about W.T. Capital Lender but they are indecipherable. For instance, one sentence appears to read, "There is a pro se plaintiff concern that W.T. Capital Lender motive [sic] limitations when change of operation and manipulation happens [sic] to model operation guide lines." Plaintiff then describes what appears to be a real estate transaction involving W.T. Capital Lender. The second page of the FAC appears to discuss certain types of damages.
The FAC is unintelligible and does not appear to respond to the April 26, 2005 Order Dismissing Complaint With Leave to Amend.
The Ninth Circuit has indicated that leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) is properly granted only when the plaintiff has demonstrated poverty and has presented a claim that is not factually or legally frivolous within the definition of § 1915(e)(2)(B). O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First Nat'l Bank Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). Thus, the court "may deny leave to proceedin forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Id. (quoting Reece v. Washington, 310 F.2d 139, 140 (9th Cir. 1962); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.),cert. denied, 382 U.S. 896 (1965)). An in forma pauperis complaint is frivolous if it has "no arguable basis in fact or law." O'Loughlin, 920 F.2d at 617; Tripati, 821 F.2d at 1379;Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
Section 1915(e)(2)(B) states:
. . . the court shall dismiss the case at any time if the court determines that —
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
The Supreme Court holds that dismissal prior to service under 28 U.S.C. § 1915(e)(2)(B) is appropriate where no legal interest is implicated, i.e., the claim is premised on a meritless legal theory, or clearly lacking any factual basis. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Section 1915(e)(2)(B) accords judges the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 34 (1992). Because a dismissal pursuant to § 1915(e)(2)(B) is not a dismissal on the merits, but rather an exercise of the court's discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. Id.
Plaintiff's FAC fails to allege any facts that would state a claim against Defendant. For this reason, the FAC must be dismissed and Plaintiff's request to proceed IFP is denied.
CONCLUSION
For the foregoing reasons, Plaintiff's request to proceed in forma pauperis is denied and his complaint is dismissed without prejudice to refiling as a paid complaint.