Opinion
24-CV-01764-CAB-JLB
10-16-2024
GARRETT MICHAEL GOLDUP Plaintiff, v. THE CITY OF SAN DIEGO, Defendant.
ORDER:
(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2];
(2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C. § 1915 AND FED. R. CIV. P. 4(C)(3)
Plaintiff, a non-prisoner proceeding pro se, has filed a complaint alleging branches of the San Diego Public Library denied him entry with his service dog on multiple occasions. Plaintiff has not paid the civil filing fee required to commence this action, but rather, has filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. [ECF No. 2.]
I. MOTION TO PROCEED IFP
Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of a suit without prepayment of fees if the plaintiff submits an affidavit, including a statement of all his or her assets, showing that he or she is unable to pay filing fees. The determination of indigency falls within the district court's discretion. Cal. Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev'd on other grounds, 506 U.S. 194 (1993). Plaintiff has submitted an affidavit that sufficiently shows he lacks the financial resources to pay filing fees. Accordingly, the Court GRANTS Plaintiff's motion to proceed IFP pursuant to 28 U.S.C. § 1915(a).
II. INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
The Court is obligated to screen all cases filed IFP pursuant to 28 U.S.C. § 1915(e)(2)(B). See 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 that provision, the Court “shall dismiss” the case, or any portion of it, if it determines that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks relief against a defendant who is immune from such relief. “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under 1915(e)(2)(b)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “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) (internal quotation marks omitted).
The Court finds Plaintiff's Complaint plausibly alleges claims against Defendant City of San Diego, sufficient to meet the “low threshold” for proceeding past the sua sponte 1915(e)(2)(b) screening stage. See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012).
Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and 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).
III. CONCLUSION
Accordingly, the Court hereby GRANTS Plaintiff's motion to proceed in forma pauperis and ORDERS as follows:
1. The United States Marshal shall serve a copy of the complaint, summons, and order granting leave to proceed in forma pauperis upon Defendant as directed by Plaintiff on U.S. Marshal Form 285. All costs of service shall be advanced by the United States.
2. The Clerk shall issue a summons as to Plaintiff's Complaint [ECF No. 1] and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendant. In addition, the Clerk shall provide Plaintiff with certified copies of this Order, his Complaint, and the summons so that he may serve this Defendant. Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 285s as completely and accurately as possible, include an address where the Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and return it to the United States Marshal according to the instructions the Clerk provides.
4. Plaintiff shall serve upon Defendant or, if appearance has been entered by counsel, upon Defendant's counsel, a copy of every further pleading or other document submitted for consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of any document was served on Defendant or Defendant's counsel and the date of service. Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk or that fails to include a Certificate of Service will be disregarded.
IT IS SO ORDERED.