Opinion
No. C 05-1753 CW.
June 22, 2005
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff Jeremy Curd requests leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). 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 proceed in 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.
In his complaint, which is a form complaint for Title VII employment discrimination actions, Plaintiff checked the boxes indicating that Defendant discriminated against him by failing to employ him on the basis of his race or color. In the blank spaces allowing for specification of Defendant's acts, Plaintiff wrote: (1) he was harassed by a night manager; (2) "letters distributed claim limited maid service — Notice;" (3) he was denied an application for priority rewards member; (4) two employees charged into a room without consent; (5) he left the general manager a message but the manager did not reply; and (6) "he requested an employment application and denied."
In the past year, Plaintiff has filed many discrimination suits against different defendants with little or no grounds to support his claims. See e.g., Curd v. Menzies/Ogden Aviation, C 03-3904 CW, (judgment against Plaintiff entered on June 28, 2004, appeal dismissed on January 7, 2005); Curd v. Menzies, C 04-1180 CW (dismissed on June 28, 2004); Curd v. Globe Ground, C 04-1181 CW (dismissed on August 10, 2004, appeal dismissed on January 18, 2005); Curd v. Host Marriott Int'l, C 04-1182 CW (dismissed on June 28, 2004); Curd v. Swisport, C 04-1183 CW (dismissed on August 10, 2004, appeal dismissed on November 12, 2004); Curd v. Ogden Menzies, C 04-1186 CW (dismissed on June 28, 2004); Curd v. United States Court Marshal Security, C 04-1187 CW (dismissed on June 28, 2004); Curd v. Brugnara, C 04-1190 CW (dismissed on June 28, 2004); Curd v. Lewis Jackson, C 04-1191 CW (dismissed on June 28, 2004); Curd v. MJM Managing, C 05-0562 CW (dismissed on May 19, 2005); and Curd v. Founders Equity Office, C 05-00609 CW (dismissed on May 19, 2005).
Plaintiff's complaint is insufficient to put Defendant on notice of the basis of Plaintiff's claims. Although the boxes checked on the form complaint indicate that Plaintiff's claim is failure to hire on the basis of his race, the factual basis for this claim is not clear. Several of Plaintiff's factual allegations have nothing to do with a failure to hire. Furthermore, the one allegation that implies a failure to hire, that Plaintiff requested an employment application and was denied, does not indicate whether Plaintiff is qualified to work for Defendant and fails to state on what basis Defendant's conduct implies discrimination on the basis of race.
Therefore, this complaint is dismissed with leave to amend. If Plaintiff wishes to file an amended complaint he must remedy the deficiencies noted above.
CONCLUSION
For the foregoing reasons, Plaintiff's request to proceed in forma pauperis is denied and his complaint is dismissed with leave to amend. If Plaintiff wishes to file an amended complaint, he must do so within thirty days from the date of this order. If Plaintiff does not file an amended complaint within thirty days, this complaint will be dismissed for failure to prosecute.