1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 22-CV-453 TWR (JLB)
12 ERNESTO AGUILLON, ORDER (1) GRANTING 13 PLAINTIFF’S MOTION TO Plaintiff, PROCEED IN FORMA PAUPERIS, 14 v. AND (2) DISMISSING WITHOUT 15 PREJUDICE PLAINTIFF’S BARRY TED MOSKOWITZ, COMPLAINT 16
17 Defendant. (ECF No. 2)
18 19 20 Presently before the Court is Plaintiff Ernesto Aguillon’s Motion to Proceed in 21 Forma Pauperis (“IFP”). (ECF No. 2 (“IFP Mot.”).) For the reasons explained below, the 22 Court GRANTS Plaintiff’s IFP Motion and sua sponte DISMISSES WITHOUT 23 PREJUDICE Plaintiff’s Complaint (ECF No. 1 (“Compl.”)) following the screening 24 required by 28 U.S.C. § 1915(e)(2)(B). 25 MOTION TO PROCEED IN FORMA PAUPERIS 26 Plaintiff requests leave to proceed IFP because he claims he is “unable to pay the 27 costs of the proceedings.” (IFP Mot. at 1.) All parties instituting any civil action, suit, or 28 proceeding in a district court of the United States, except an application for a writ of habeas 1 corpus, must pay filing and administration fees totaling $402. 28 U.S.C. § 1914(a). A 2 court may, however, in its discretion, allow a plaintiff to proceed without paying these fees 3 if the plaintiff seeks leave to proceed IFP by submitting an affidavit demonstrating the fees 4 impose financial hardship. See 28 U.S.C. § 1915(a); Escobeda v. Applebees, 787 F.3d 5 1226, 1234 (2015). Although the statute does not specify the qualifications for proceeding 6 IFP, the plaintiff’s affidavit must allege poverty with some particularity. Escobeda, 787 7 F.3d at 1234. Granting a plaintiff leave to proceed IFP may be proper, for example, when 8 the affidavit demonstrates that paying court costs will result in a plaintiff’s inability to 9 afford the “necessities of life.” Id. The affidavit, however, need not demonstrate that the 10 plaintiff is destitute. Id. 11 Plaintiff sufficiently demonstrates that paying court costs would hinder his ability to 12 afford the necessities of life. Plaintiff provided the requisite affidavit in support of his 13 application, (see IFP Mot. at 1), which shows that Plaintiff is unemployed, with an annual 14 income of $0. (Id.) Plaintiff reports that he has $0 in his bank account, and that the only 15 item of value he owns is a 2016 Toyota Scion. (Id. at 2.) As Plaintiff has sufficiently 16 demonstrated that he cannot pay the costs of these proceedings, the Court GRANTS 17 Plaintiff’s IFP Motion. 18 INITIAL SCREENING PER 28 U.S.C. § 1915(e)(2)(B) 19 I. Legal Standard 20 Because the Court has granted Plaintiff leave to proceed IFP, pursuant to 28 U.S.C. 21 § 1915(e)(2)(B), the Court must sua sponte dismiss a Plaintiff’s IFP complaint, or any 22 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 23 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 24 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 25
26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, 28 § 14 (eff. June 1, 2016)). The additional $52 administrative fee does not apply to persons granted leave 1 2001) (noting that 28 U.S.C. § 1915(e)(2)(B) is “not limited to prisoners”). “The purpose 2 of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 3 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 4 (citation omitted). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 9 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 10 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 11 Courts construe pro se complaints liberally when evaluating whether the complaint 12 states a claim. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Construing a complaint 13 liberally, however, does not entail adding “essential elements of the claim that were not 14 initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 15 1982). Like all litigants, pro se plaintiffs must follow the Federal Rules of Civil Procedure. 16 See McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that 17 procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes 18 by those who proceed without counsel.”). 19 II. Analysis 20 Plaintiff’s civil cover sheet indicates that he is asserting a violation of his civil rights 21 pursuant to 42 U.S.C. § 1983. (Compl. at 6.2) When prompted to provide a short and plain 22 statement of the claim, Plaintiff writes, “[t]his information will come to light after 23 discovery.” (See id. at 4.) Though the Court construes pro se complaints liberally, see 24 Estelle, 429 U.S. at 106, the Court cannot supplement it with facts that are not pled. See 25 Ivey, 673 F.2d 266 at 268. And Plaintiff puts the cart before the horse by requesting 26 discovery to plead a plausible claim: “Rule 8 . . . does not unlock the doors of discovery for 27
28 1 a plaintiff armed with nothing more than conclusions.” See Iqbal, 556 U.S. at 678–79. In 2 other words, Plaintiff’s “factual allegations . . . must plausibly suggest an entitlement to 3 relief, such that it is not unfair to require the opposing party to be subjected to the expense 4 of discovery and continued litigation.” See A.E. ex rel. Hernandez v. Cty. of Tulare, 666 5 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). 6 Because Plaintiff does not plead facts to support a plausible claim—much less identify a 7 cause of action—Plaintiff’s Complaint does not adequately allege any claim.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 22-CV-453 TWR (JLB)
12 ERNESTO AGUILLON, ORDER (1) GRANTING 13 PLAINTIFF’S MOTION TO Plaintiff, PROCEED IN FORMA PAUPERIS, 14 v. AND (2) DISMISSING WITHOUT 15 PREJUDICE PLAINTIFF’S BARRY TED MOSKOWITZ, COMPLAINT 16
17 Defendant. (ECF No. 2)
18 19 20 Presently before the Court is Plaintiff Ernesto Aguillon’s Motion to Proceed in 21 Forma Pauperis (“IFP”). (ECF No. 2 (“IFP Mot.”).) For the reasons explained below, the 22 Court GRANTS Plaintiff’s IFP Motion and sua sponte DISMISSES WITHOUT 23 PREJUDICE Plaintiff’s Complaint (ECF No. 1 (“Compl.”)) following the screening 24 required by 28 U.S.C. § 1915(e)(2)(B). 25 MOTION TO PROCEED IN FORMA PAUPERIS 26 Plaintiff requests leave to proceed IFP because he claims he is “unable to pay the 27 costs of the proceedings.” (IFP Mot. at 1.) All parties instituting any civil action, suit, or 28 proceeding in a district court of the United States, except an application for a writ of habeas 1 corpus, must pay filing and administration fees totaling $402. 28 U.S.C. § 1914(a). A 2 court may, however, in its discretion, allow a plaintiff to proceed without paying these fees 3 if the plaintiff seeks leave to proceed IFP by submitting an affidavit demonstrating the fees 4 impose financial hardship. See 28 U.S.C. § 1915(a); Escobeda v. Applebees, 787 F.3d 5 1226, 1234 (2015). Although the statute does not specify the qualifications for proceeding 6 IFP, the plaintiff’s affidavit must allege poverty with some particularity. Escobeda, 787 7 F.3d at 1234. Granting a plaintiff leave to proceed IFP may be proper, for example, when 8 the affidavit demonstrates that paying court costs will result in a plaintiff’s inability to 9 afford the “necessities of life.” Id. The affidavit, however, need not demonstrate that the 10 plaintiff is destitute. Id. 11 Plaintiff sufficiently demonstrates that paying court costs would hinder his ability to 12 afford the necessities of life. Plaintiff provided the requisite affidavit in support of his 13 application, (see IFP Mot. at 1), which shows that Plaintiff is unemployed, with an annual 14 income of $0. (Id.) Plaintiff reports that he has $0 in his bank account, and that the only 15 item of value he owns is a 2016 Toyota Scion. (Id. at 2.) As Plaintiff has sufficiently 16 demonstrated that he cannot pay the costs of these proceedings, the Court GRANTS 17 Plaintiff’s IFP Motion. 18 INITIAL SCREENING PER 28 U.S.C. § 1915(e)(2)(B) 19 I. Legal Standard 20 Because the Court has granted Plaintiff leave to proceed IFP, pursuant to 28 U.S.C. 21 § 1915(e)(2)(B), the Court must sua sponte dismiss a Plaintiff’s IFP complaint, or any 22 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 23 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 24 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 25
26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, 28 § 14 (eff. June 1, 2016)). The additional $52 administrative fee does not apply to persons granted leave 1 2001) (noting that 28 U.S.C. § 1915(e)(2)(B) is “not limited to prisoners”). “The purpose 2 of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 3 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 4 (citation omitted). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 9 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 10 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 11 Courts construe pro se complaints liberally when evaluating whether the complaint 12 states a claim. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Construing a complaint 13 liberally, however, does not entail adding “essential elements of the claim that were not 14 initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 15 1982). Like all litigants, pro se plaintiffs must follow the Federal Rules of Civil Procedure. 16 See McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that 17 procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes 18 by those who proceed without counsel.”). 19 II. Analysis 20 Plaintiff’s civil cover sheet indicates that he is asserting a violation of his civil rights 21 pursuant to 42 U.S.C. § 1983. (Compl. at 6.2) When prompted to provide a short and plain 22 statement of the claim, Plaintiff writes, “[t]his information will come to light after 23 discovery.” (See id. at 4.) Though the Court construes pro se complaints liberally, see 24 Estelle, 429 U.S. at 106, the Court cannot supplement it with facts that are not pled. See 25 Ivey, 673 F.2d 266 at 268. And Plaintiff puts the cart before the horse by requesting 26 discovery to plead a plausible claim: “Rule 8 . . . does not unlock the doors of discovery for 27
28 1 a plaintiff armed with nothing more than conclusions.” See Iqbal, 556 U.S. at 678–79. In 2 other words, Plaintiff’s “factual allegations . . . must plausibly suggest an entitlement to 3 relief, such that it is not unfair to require the opposing party to be subjected to the expense 4 of discovery and continued litigation.” See A.E. ex rel. Hernandez v. Cty. of Tulare, 666 5 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). 6 Because Plaintiff does not plead facts to support a plausible claim—much less identify a 7 cause of action—Plaintiff’s Complaint does not adequately allege any claim. 8 Additionally, even if Plaintiff had alleged sufficient facts to state a plausible cause 9 of action, judicial immunity would dictate that Defendant, Judge Barry Ted Moskowitz, be 10 immune from liability. “Judges of courts of superior or general jurisdiction are not liable 11 to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, 12 and are alleged to have been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 13 349, 355–56 (1978) (citing Bradley v. Fisher, 80 U.S. 335, 351 (1871)). A judge “will be 14 subject to liability only when he has acted in the “clear absence of all jurisdiction.” Id. at 15 356–57. The doctrine of judicial immunity applies to actions under Section 1983. See id. 16 at 356. Here, there are no allegations in Plaintiff’s putative Section 1983 Complaint 17 indicating that Judge Moskowitz took any actions in the absence of jurisdiction. Therefore, 18 on the face of the Complaint, Judge Moskowitz is immune from liability, and Plaintiff’s 19 claims against him must be dismissed. 20 CONCLUSION 21 In light of the foregoing, the Court GRANTS Plaintiff’s Motion to Proceed IFP 22 (ECF No. 2) and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint (ECF No. 23 1). Plaintiff has sixty (60) days from the date of this Order to submit an amended complaint 24 correcting the deficiencies noted herein. The amended complaint must be complete by 25 itself without reference to his original pleading. Defendants not named and any claim not 26 re-alleged in the amended complaint will be considered waived. See S.D. Cal. CivLR 15.1; 27 Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 28 amended pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693 F.3d 1 || 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 2 ||re-alleged in an amended pleading may be “considered waived if not repled”). Failure 3 || timely to amend the complaint will result in the Court’s dismissal without prejudice of this 4 for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. 5 || § 1915(e)(2)(B) and failure to prosecute in compliance with a court order requiring 6 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 7 take advantage of the opportunity to fix his complaint, a district court may convert the 8 || dismissal of the complaint into dismissal of the entire action.”). 9 IT IS SO ORDERED. 10 || Dated: June 16, 2022 Tan (2 bre Honorable Todd W. Robinson United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28