Opinion
22-cv-00928-LB
02-16-2022
PHILIP DESCHAMPS, Plaintiff, v. CITY OF SAUSALITO, et al., Defendants.
ORDER REASSIGNING CASE; REPORT AND RECOMMENDATION TO PROCEED IN FORMA PAUPERIS
RE: ECF NO. 2 AND 4
LAUREL BEELER UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
The plaintiff, Philip Deschamps, who represents himself, sued defendants City of Sausalito, City Manager Chris Zapata, Police Lieutenant Stacey Gregory, and Police Officer Edgar Padilla, claiming that they violated his rights under the First, Fourth, Eighth, and Fourteenth Amendments. The plaintiff filed the original complaint and an application to proceed in forma pauperis under 28 U.S.C. § 1915 on February 15, 2022. The plaintiff also asked for a temporary restraining order on the same date.
Compl. - ECF No. 1 at 2-3. Citations refer to material in the Electronic Case file (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents.
Compl. - ECF No. 1; Appl. - ECF No. 2.
Mot. - ECF No. 4.
Because the plaintiff has not yet consented to the undersigned's jurisdiction the case must be reassigned. Williams v. King, 875 F.3d 500, 503-05 (9th Cir. 2017). Given the plaintiff's request for a temporary restraining order, the court directs the Clerk of Court to reassign the case to a district judge now rather than wait for the parties to consent to magistrate judge jurisdiction. The court further recommends (1) permitting the plaintiff to proceed in forma pauperis and (2) against dismissal of the case following the mandatory sua sponte review.
STATEMENT
The plaintiff's complaint asserts claims under § 1983 against City of Sausalito, City Manager Chris Zapata, Police Lieutenant Stacey Gregory, and Police Officer Edgar Padilla for violations of his First, Fourth, Eighth and Fourteenth Amendment Rights. The complaint alleges the defendants “gave us 3 days to move to the tennis courts, and now they are taking away the structure I need to keep my cats.” The plaintiff claims that the defendants “are constructively taking away my cats in a way that could lead to my cats being seriously injured or killed by being forced on the streets.” The plaintiff asks the court to “stop the city from taking down my structure so I can keep my cats.”
Compl. - ECF No. 1 at 2-3.
Id. at 4.
Id.
Id. at 5.
The plaintiff asks for a temporary restraining order barring the City of Sausalito from “destroying” the plaintiff's “structure” or “evict[ing]” his cats.
Mot. - ECF No. 4-1 at 1-2.
ANALYSIS
1. IFP Affidavit
“Under 28 U.S.C. § 1915, a district court may authorize the commencement of a civil action IFP if it is satisfied that the plaintiff cannot pay the filing fees necessary to pursue the action.” La Douer v. U.C.S.F., No. 15-cv-02214-MEJ, 2015 WL 4323665, at *2 (N.D. Cal. July 15, 2015) (citing 28 U.S.C. § 1915(a)(1)). “The policy for allowing a plaintiff to proceed IFP is to protect litigants from abandoning ‘what may be a meritorious claim in order to spare himself complete destitution.'” Id. (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 340 (1948)). “However, ‘court permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not violate the applicant's right to due process.'” Id. (internal brackets omitted) (quoting Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)).
“To determine IFP eligibility, an applicant must ‘submit an affidavit that includes a statement of all assets' showing that the applicant ‘is unable to pay such fees or give security therefor.'” Id. (internal brackets omitted) (quoting 28 U.S.C. § 1915(a)(1)). “To satisfy this requirement, ‘an affidavit of poverty is sufficient which states that one cannot because of his or her poverty pay or give security for costs and still be able to provide himself and dependents with the necessities of life.'” Id. (internal brackets and ellipsis omitted) (quoting Adkins, 335 U.S. at 339). “The Ninth Circuit has held that a plaintiff seeking IFP status must allege poverty ‘with some particularity, definiteness and certainty.'” Id. (cleaned up) (quoting Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015)). “The Court has discretion to make a factual inquiry into an IFP applicant's financial status and to deny the application where the applicant is unable or unwilling to verify his or her poverty.” Id. (citing United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). Courts have denied IFP status where plaintiffs have provided incomplete information about their financial status or failed to clearly disclose their income and assets. See Id. at *2-3 (citing cases).
Here, the plaintiff has stated that he has no income or assets. Thus, the plaintiff has established that he is entitled to proceed in forma pauperis.
Appl. - ECF No. 2 at 3.
2. Sua Sponte Screening - 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before directing the United States Marshals to serve the complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127. “The language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
“Frivolousness” within the meaning of the in forma pauperis standard of 28 U.S.C. § 1915(d) and failure to state a claim under Rule 12(b)(6) are distinct concepts. “‘A complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.'” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke, 490 U.S. at 325). The definition of frivolousness “embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke, 490 U.S. at 325.
When determining whether to dismiss a complaint as “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(i), the court has “‘the unusual power to pierce the veil of the complaint's factual allegations, '” meaning that the court “is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32 (quoting Nietzke, 490 U.S. at 327). Frivolous claims include “‘claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.'” Id. (quoting Nietzke, 490 U.S. at 328). “An in forma pauperis complaint may not be dismissed . . . simply because the court finds the plaintiff's allegations unlikely.” Id. at 33. But “a finding of factual frivolousness is appropriate 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.” Id. As the Ninth Circuit has explained, frivolous litigation “is not limited to cases in which a legal claim is entirely without merit. . . . [A] person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1060-61 (9th Cir. 2007).
Under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain “detailed factual allegations, ” but the plaintiff must “provide the grounds of his entitlement to relief, ” which “requires more than labels and conclusions”; a mere “formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555 (cleaned up).
In determining whether to dismiss a complaint under Rule 12(b)(6), the court is ordinarily limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court cannot assume, however, that “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro se plaintiff need only provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns, 413 F.3d at 1043. He need not plead specific legal theories so long as sufficient factual averments show that he may be entitled to some relief. Id. at 1041.
When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d at 1130 (cleaned up).
The plaintiffs claim is not incurably deficient. Courts have issued injunctions against the displacement of people without permanent housing and the confiscation of property owned by such persons. Lavan v. City of Los Angeles, 693 F.3d 1022, 1027, 1033 (9th Cir. 2012) (denying appeal of district court order granting an injunction preventing the confiscation and destruction of homeless persons under the Fourth and Fourteenth Amendments.); Cobine v. City of Eureka, No. C 16-02239 JSW, 2016 WL 1730084, at *7-9 (N.D. Cal. May 2, 2016) (issuing a temporary restraining order against the eviction of homeless people based on alleged violations of the Eighth Amendment). Thus, the plaintiffs complaint is not subject to dismissal on mandatory sua sponte review.
CONCLUSION
The court directs the Clerk of Court to reassign the case to a district judge and recommends approving the plaintiffs request to proceed in forma pauperis and against dismissing the plaintiffs complaint on sua sponte review.
IT IS SO ORDERED AND RECOMMENDED.