Opinion
Case No.: 16cv765 BTM(JLB)
04-05-2016
MONTOREY DANYELL HARPER, Plaintiff, v. SHERIFF, SAN DIEGO, Defendant.
ORDER GRANTING MOTION TO RPOCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT
On March 31, 2016, Plaintiff filed a Complaint and a Motion to Proceed In Forma Pauperis ("IFP"). For the reasons discussed below, the IFP Motion is granted, and the Complaint is dismissed.
DISCUSSION
I. Motion to Proceed IFP
Upon review of Plaintiff's affidavit in support of his IFP Motion, the Court finds that Plaintiff has made a sufficient showing of inability to pay the filing fee required to prosecute this action. Accordingly, Plaintiff's IFP Motion is GRANTED.
II. Failure to State a Claim and Frivolous Action
Although the Court will allow Plaintiff to proceed IFP, Plaintiff's Complaint must be dismissed. The Court is under a continuing duty to dismiss an IFP case whenever the Court determines that the action is "frivolous or malicious" or "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(i),(ii).
Plaintiff alleges violation of his civil rights and infliction of emotional distress and seeks $1,000,000,000,000,000,000 in damages. The only facts alleged by Plaintiff are: "On 3/28/2016 at 6:00 a.m. Civil Rights violation discrimination against Plaintiff because of Sex, the city having its employee place his foot out on top of the Plaintiffs feet." Essentially, Plaintiff alleges that a city employee stepped on Plaintiff's feet. These allegations do not support a claim for violation of constitutional rights or intentional infliction of emotional distress. Therefore, the Complaint fails to state a claim upon which relief may be granted.
In addition, the Court finds that this action is frivolous. An action is frivolous if it lacks an arguable basis in either law of fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Because this action is frivolous, the Court DISMISSES it pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The Court does not grant Plaintiff leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) ("When a case may be classified as frivolous or malicious, there is, by definition, no merit to the underlying action and so no reason to grant leave to amend.").
The Court observes that it appears that Plaintiff is abusing the legal process. On the same day that Plaintiff filed this action, Plaintiff filed four other cases in this district. All of Plaintiff's Complaints allege miscellaneous violations of civil rights. --------
CONCLUSION
For the reasons discussed above, Plaintiff's motion to proceed in forma pauperis is GRANTED, and Plaintiff's Complaint is DISMISSED without leave to amend as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The Clerk shall close this case.
IT IS SO ORDERED.
Dated: April 5, 2016
/s/_________
Barry Ted Moskowitz, Chief Judge
United States District Court