Opinion
Case No.: 21cv0364 DMS (AHG)
05-21-2021
JASON WARD, Plaintiff, v. STATE OF CALIFORNIA, Defendant.
ORDER (1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND (2) DISMISSING COMPLAINT WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii)
Plaintiff, a non-prisoner proceeding pro se, has submitted a Complaint along with a request to proceed In Forma Pauperis and a request for appointment of counsel.
Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $402. See 28 U.S.C. § 1914(a); Civil Local Rule 4.5. An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). This Court finds Plaintiff's affidavit of assets is sufficient to show he is unable to pay the fees or post securities required to maintain this action. See Civil Local Rule 3.2(d). Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a).
Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Prior to its amendment by the Prison Litigation Reform Act, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Id. at 1130. The newly enacted 28 U.S.C. § 1915(e)(2), however, mandates that the court reviewing a complaint filed pursuant to the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing that the complaint be served by the U.S. Marshal pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting the "the language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).").
Here, Plaintiff complains that the State of California is (1) forcing him to make child support payments to the mother of his child, (2) violating his "civil rights to be a father to [his] son and probably [his] daughter[,]" (3) refusing to allow him to have a paternity test for another child, and (4) refusing to protect him from the mother of his child. To the extent Plaintiff is attempting to allege a constitutional claim against the State of California, which is the only named Defendant in this case, any such claim is barred by the Eleventh Amendment. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 120 (1984).
Conclusion and Order
In light of the above, Plaintiff's Motion to Proceed IFP is GRANTED and the Complaint is DISMISSED without prejudice for failure to state a claim.
In light of this ruling, Plaintiff's request for appointment of counsel is denied.
IT IS SO ORDERED. Dated: May 21, 2021
/s/_________
Hon. Dana M. Sabraw, Chief Judge
United States District Court