Opinion
21-CV-1010 JLS (DEB)
06-08-2021
GREGORY ACKERS, an individual, Plaintiff, v. ALEJANDRO MAYORKAS; CENTER FOR DISEASE CONTROL; and GOVERNOR GAVIN NEWSOM, Defendants.
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING COMPLAINT
(ECF NO. 2)
Janis L. Sammartino, United States District Judge
Presently before the Court is Plaintiff Gregory Ackers's Motion to Proceed In Forma Pauperis (“IFP”) (“Mot., ” ECF No. 2). Plaintiff, proceeding pro se, filed a Complaint alleging that the Center for Disease Control and Prevention's (“CDC”) policy of allowing unaccompanied migrant children into California violates the California Administrative Procedure Act (“APA”). See ECF No. 1 (“Compl.”) at 1. Plaintiff requests that the Court declare the policy to be unlawful and issue an injunction preventing the implementation of the policy. See Id. at 6. The Court addresses the Motion and the sufficiency of the Complaint below.
I. 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). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the party is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court may authorize the commencement of an action without the prepayment of fees if the party submits an affidavit, including a statement of assets, showing that the party is unable to pay the required filing fee. 28 U.S.C. § 1915(a).
Plaintiff's motion to proceed IFP indicates that his average monthly income over the past year was $943, and that he has $100 in his bank account. Mot. at 1-2. Plaintiff's monthly expenses total $943. Id. Based on these facts, the Court concludes that Plaintiff is unable to pay the requisite fees and costs. Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP.
II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
Notwithstanding IFP status, the Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) and dismiss any case it finds “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from relief.” 28 U.S.C. § 1915(e)(2)(B); see also 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 prisoner.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim”).
The Court finds that Plaintiff's Complaint is frivolous. A complaint is frivolous when “the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 25-26 (1992). “[A] complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). To determine whether a complaint is frivolous, the court need not accept the allegations as true, but must “pierce the veil of the complaint's factual allegations, ” id. at 327, to determine whether they are “‘fanciful,' ‘fantastic,' [or] ‘delusional.'” Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 328).
Plaintiff generally claims that Defendants have committed “deadly & anti-scientific misdeeds.” Compl. ¶ 9. Plaintiff alleges that “California[']s border is flooded with illegal alien children, most of who've escaped detention & many of whom carry the Covid-19 virus.” Id. ¶ 4. Plaintiff claims that these children are “vying to be detained” and “are being used as human puppets by international narcotics & slavery cartels.” Id. ¶ 7. Plaintiff further alleges that migrant children placed with family members in the United States did not “receive DNA tests conforming [sic] them to any of these putative ‘family members'.” Id. The Court finds that Plaintiff “lacks an arguable basis” for bringing this case. Neitzke, 490 U.S. at 325. Plaintiff's allegations are a whirlwind of conspiracy theories that “rise to the level of the irrational or the wholly incredible.” Denton, 504 U.S. at 33. Based on the entirety of the Complaint, the Court finds Plaintiff's allegations irrational, delusional, and wholly incredible.
Having determined that the Complaint is frivolous, the Court DISMISSES Plaintiff's action. See Lopez, 203 F.3d at 1127 n.8.
III. Conclusion
Based on the foregoing, the Court GRANTS Plaintiff's Motion to Proceed IFP, (ECF No. 2) and DISMISSES WITHOUT PREJUDICE Plaintiffs' Complaint. Plaintiff MAY FILE an amended complaint that remedies the deficiencies outlined above within thirty (30) days of the date on which this Order is electronically docketed. Any amended filing must be complete in itself, without reference to Plaintiff's original Complaint. Any claim not re-alleged in Plaintiff's amended complaint will be considered waived. See S.D. Cal. Civ L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled”).
Should Plaintiff fail to file an amended complaint within the time provided, the Court will enter a final order dismissing this civil action with prejudice. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a district court may convert the dismissal of the complaint into dismissal of the entire action”).
IT IS SO ORDERED.