Opinion
CV-22-08183-PCT-DWL
10-17-2022
David Cupples, Plaintiff, v. Catholic Charities Community Services Incorporated, Defendant.
ORDER
DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
Pending before the Court are Plaintiff's Applications for Leave to Proceed In Forma Pauperis (Docs. 2, 7), which the Court hereby grants. The Court will screen Plaintiff's complaint (Doc. 1) pursuant to 28 U.S.C. § 1915(e)(2) before it is allowed to be served.
Although section 1915 largely concerns prisoner litigation, section 1915(e) applies to all in forma .pauperis proceedings. 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.”).
Under § 1915(e)(2), a complaint is subject to dismissal if it contains claims that are “frivolous or malicious,” that “fail[] to state a claim upon which relief may be granted,” or that “seek[] monetary relief against a defendant who is immune from such relief.” Id. Additionally, under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. Although Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
The Ninth Circuit has instructed that courts must “construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Conclusory and vague allegations, however, will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A liberal interpretation may not supply essential elements of the claim that were not initially pled. Id.
The Court concludes that the complaint properly alleges jurisdictional facts and, liberally construed, is “sufficient to meet the low threshold for proceeding past the screening stage.” Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012).
“[T]he sua sponte screening and dismissal procedure is cumulative of, not a substitute for, any subsequent Rule 12(b)(6) motion that [a] defendant may choose to bring.” Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. 2007).
Also pending before the Court is Plaintiff's motion for a temporary restraining order. (Doc. 5.) The relief sought by Plaintiff is an order “enjoin[ing] Defendant from filing an eviction action against Plaintiff during the pendency of the current case.” (Id. at 1.) Although the Court is sympathetic to Plaintiff's circumstances and acknowledges the strength of his attempt to establish the existence of irreparable harm in the absence of injunctive relief, Rule 65(b)(1) of the Federal Rules of Civil Procedure provides that the Court “may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if” two requirements are met: (1) “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition,” and (2) “the movant's attorney”-or here, the Plaintiff himself-“certifies in writing any efforts made to give notice and the reasons why it should not be required.” Neither requirement has been met here.
As for the first requirement, Plaintiff has not submitted an affidavit and the complaint is not verified under penalty of perjury. See, e.g., Farrow v. Citimortgage, Inc., 2016 WL 302315. *2 (N.D. Tex. 2016) (“Plaintiff's Application for TRO fails to satisfy all of the federal requirements for a TRO. Plaintiff's Original Petition and Application for TRO are not verified and no evidence was submitted in support of the Application for TRO.”). Although Plaintiff includes a certification at the conclusion of his complaint that it complies with Rule 11, that is not the same thing as a verification under penalty of perjury. See 28 U.S.C. § 1746.
As for the second requirement, Plaintiff has not explained his efforts, if any, to give notice of the TRO to Defendant or provided reasons why notice should not be required. “Litigants should give whatever notice is practicable under the circumstances, even if it would be insufficient under Rule 65(a)(1) for a preliminary injunction hearing.” 2 Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 65, at 332 (2020). “[T]he circumstances under which a party may proceed ex parte are very limited, such as when the opposing party is unknown or cannot be found, or when the party moving ex parte has a demonstrable basis to argue that the opposing party would use the notice to frustrate the course of justice.” Id. “[I]nformal notice and a hastily arranged hearing are to be preferred to no notice or hearing at all.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 433 n.7 (1974).
As soon as possible, and at any rate within three days of receiving a copy of this order, Plaintiff shall-to the extent he wishes to pursue his request for a TRO-provide Defendant with a copy of the complaint, the TRO motion, and this order and shall file a notice with the Court indicating that notice to Defendant has been given. The Court recognizes that Plaintiff is indigent (such that hiring a process server is not within his means) and is entitled to have the Court “issue and serve all process” if he requests it. See 28 U.S.C. § 1915(d); see also Fed.R.Civ.P. 4(c)(3) (service of process available “[a]t the plaintiff's request”); Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir. 1991) (confronting “an inconsistency” between Rule 4 and § 1915 and concluding that “[a]n IFP plaintiff must request that the marshal serve his complaint before the marshal will be responsible for such service”). To be clear, Plaintiff is not being ordered to serve process pursuant to Rule 4 before the TRO motion can be resolved-the “informal notice” contemplated by the Supreme Court is sufficient for the time being. Granny Goose, 415 U.S. at 433 n.7. Thus, Plaintiff may use whatever informal means of quickly providing notice are most readily available to him, including email or hand-delivery. Alternatively, if providing notice is impractical for some reason, Plaintiff may supplement his TRO motion with (1) an affidavit laying out facts that “clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition” and (2) a certification setting forth “any efforts made to give notice and the reasons why it should not be required.” Fed.R.Civ.P. 65(b)(1).
Plaintiff has not yet requested that the Court serve the complaint and summons, nor does it appear that he has undertaken service on his own accord.
“[A]n affidavit is a (1) written statement (2) containing a voluntary declaration of facts (3) which has been sworn by the declarant.” Dunigan v. Mississippi Valley State Univ., 2020 WL 9606765 *2 (N.D. Miss. 2020).
Plaintiff is advised to act with haste, as delay that is within his control may factor into the Court's assessment of whether a TRO should ultimately issue.
Accordingly, IT IS ORDERED that Plaintiff's Applications for Leave to Proceed In Forma Pauperis (Docs. 2, 7) are granted.
IT IS FURTHER ORDERED that, to the extent Plaintiff wishes to pursue his request for a TRO, Plaintiff shall, as soon as possible, and at any rate within three days of receiving a copy of this order, provide Defendant with a copy of the complaint, the TRO motion, and this order and shall file a notice with the Court indicating that notice to Defendant has been given, or alternatively, Plaintiff shall file a Rule 65(b)(1) affidavit and certification.