Opinion
Case No. 06-CV-691 H (WMc).
April 4, 2006
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS and DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM
On March 29, 2006, Plaintiff David J. Blake filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against Defendants Rancho Tuscana Apartments, Terra Las Brisas, and Daniel Ukropina ("Defendants"). Plaintiff concurrently filed a motion to proceed in forma pauperis ("IFP") under 28 U.S.C. § 1915(a). For the following reasons, the Court DENIES Plaintiff's motion to proceed IFP and sua sponte DISMISSES his complaint without prejudice sua sponte.
Discussion
1. Motion to Proceed IFP
Plaintiff moves to proceed IFP pursuant to 28 U.S.C. § 1915(a). Section 1915(a) allows a court to authorize the commencement of a lawsuit without payment of the filing fee if the plaintiff submits an affidavit stating his or her assets that demonstrates an inability to pay the filing fee. 28 U.S.C. § 1915(a).
According to Plaintiff's affidavit, he is not employed. However, he does receive $1,200 a month in social security disability benefits. He also has $1,000 in an active checking account. Furthermore, Plaintiff states that he has no debts or dependents. Based on this information, the Court concludes that Plaintiff does not meet the minimum requirements to proceed IFP. Accordingly, the Court DENIES his motion. Plaintiff shall file the requisite filing fee pursuant to Local Civil Rule 4.5 on or before May 5, 2006. 2. Sua Sponte Dismissal pursuant to 28 U.S.C. § 1915(e)(2)
Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any person proceeding in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review. 28 U.S.C. § 1915(e)(2). Dismissal by the Court is appropriate to the extent that the complaint is "frivolous, or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against 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.").
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). Under Fed.R.Civ.P. 12(b)(6), a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no set of facts in support of his or her claim for relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957);Bautista v. Los Angeles County, 216 F.3d 837, 842 (9th Cir. 2000). Conclusory allegations of law, however, are insufficient to defeat a motion to dismiss. Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996). Courts grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory.Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
In a civil rights cause of action pursuant to 42 U.S.C. § 1983, a person or entity must be acting under the color of state authority in order to be held liable for an alleged injury. 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48 (1988) (providing that in order to state a civil rights claim under section 1983, a plaintiff must show a violation of a right secured by the laws or Constitution of the United States and that the alleged violation was committed by an individual acting under the color of state authority). An individual acts under the color of state authority if he or she exercises power "`possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West, 487 U.S. at 48 (internal citation omitted).
Here, Plaintiff has failed to allege sufficient facts to state a claim under § 1983. Plaintiff alleges in his complaint that Defendants are the owners and operators of a residential property where Plaintiff lived. While allegedly incorporated under the laws of California, such corporate classification does not mean they are functioning as a "state actor." Id. at 49. Accordingly, Plaintiff has failed to state a necessary element of the § 1983 cause of action.
Conclusion
For the reasons stated above, the Court DENIES Plaintiff's motion to proceed IFP and sua sponte DISMISSES without prejudice the complaint for failure to state a claim. The Court GRANTS Plaintiff until May 5, 2006 to file an amended complaint that addresses the deficiencies of the pleadings set forth above and the requisite filing fee.
IT IS SO ORDERED.