1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELLIOT CASRAY BOOSE, Case No. 25-cv-03366-AMO
8 Plaintiff, ORDER SCREENING AND 9 v. DISMISSING COMPLAINT
10 ELON MUSK, et al., Re: Dkt. Nos. 49, 61, 62, 63, 65 Defendants. 11
12 13 Plaintiff Elliot Casray Boose, representing himself, initiated the above-captioned civil 14 action. Before the Court are several motions filed by Boose, as well as Defendants’ oppositions to 15 the same. Having read the parties’ papers and carefully considered their arguments and the 16 relevant legal authority, and good cause appearing, the Court screens the complaint under Title 28 17 U.S.C. § 1915, DISMISSES the complaint with leave to amend, DENIES Boose’s motion to 18 appoint counsel, and TERMINATES all remaining motions as moot, for the following reasons. 19 I. BACKGROUND 20 Before discussing the underlying facts, the Court recounts the relevant procedural history 21 for context. 22 A. Relevant Procedural History 23 Boose originally filed this lawsuit in the Superior Court of Gwinnett County, State of 24 Georgia (Civil Action File No. 24-A-08811-6), where he applied to proceed in forma pauperis 25 (“IFP”). See Dkt. No. 1-1 at 49-54. Defendants removed the action to the federal district court 26 covering Gwinnett County, the Northern District of Georgia. See Dkt. No. 1 (notice of removal). 27 Because Defendants paid the filing fee at the time of removal, no federal district court has yet 1 the Court might order service of process by the United States Marshal Service (“USMS”). See 2 Dkt. No. 61 (Boose’s motion requesting service pursuant to Rule 4(c)(3)); see also Dkt. No. 53 3 (Boose’s resubmission of application to proceed in forma pauperis following the Court’s earlier 4 order quashing service); Fed. R. Civ. P. 4(c)(3) (requiring a court to order service of process by 5 USMS “if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915”). In 6 significant part, Defendants oppose Boose’s motion requesting service of process by USMS based 7 on the absence of an order granting Boose permission to proceed IFP in this forum and any 8 associated order screening the complaint under Section 1915. See Dkt. No. 64. Consideration of 9 Boose’s IFP status therefore informs and resolves multiple portions of the pending motions, 10 including, most directly, Boose’s motion for the Court to order service of process by USMS. 11 Having reviewed Boose’s renewed IFP application, Dkt. No. 53, the Court GRANTS 12 Boose’s application and proceeds to screen the complaint pursuant to Title 28 U.S.C. § 1915 13 below. 14 B. Factual Background1 15 The Court briefly recaps the factual allegations in the original complaint.2 Boose alleges 16 that X Corp. operates the “social networking service, ‘X’ (formerly known as Twitter),” which 17 “enables account holders to distribute content via text, images, videos, and other multimedia-based 18 messages.” Dkt. 1-1 at 12-13. He alleges Musk is the “owner,” “Chief Financial Officer,” and 19 “Secretary” of X Corp. Id. at 10, 13. 20 Boose is a “gay male cross-dresser” who authored an “e-book.” Dkt. 1-1 at 10, 17. Boose 21 created his X account @ElliotBoose2023 in November 2022 to, among other things, “promote his 22 1 “The standard for determining whether a plaintiff has failed to state a claim upon which relief 23 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. 24 2012). In assessing a 12(b)(6) motion, all well-pleaded allegations of material fact are accepted as true, Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010), but the Court is “not 25 bound to accept as true a legal conclusion couched as a factual allegation,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 26
2 Because no court has reached the merits of Defendants’ motions to dismiss for failure to state a 27 claim, Dkt. Nos. 8 & 41, and because no court has granted Boose leave to amend, under Federal 1 e-book.” Id. at 10-11. On June 29, 2024, he “paid [for] X Ads to promote his e-book.” Id. at 10. 2 Boose’s account was subsequently “shadow banned[,] which prevents other users from interacting 3 with his page or posts.” Id. Boose’s initial advertisement was allegedly “paused shortly 4 after[ward],” and “X support” later sent him a message stating it had “identified . . . concerns” 5 with his advertisement. Id. at 11, 23. The message invited him “to make necessary adjustments,” 6 after which X Corp. would “re-review [his] account,” but Boose does not allege he made any of 7 the requested adjustments. Id. at 23. Boose contends X Corp.’s concerns were “[f]raudulent” 8 because X Corp. allegedly “saw Plaintiff was selling an e-book” whose “cover shows his face as a 9 male and as a female.” Id. at 18. 10 Plaintiff asserts three claims against Defendants: (1) fraud; (2) breach of contract; and 11 (3) “Sex Discrimination” in violation of the “Law of Georgia on the Elimination of All Forms of 12 Discrimination.” Id. at 5-7, 18-20. 13 II. DISCUSSION 14 The Court takes up two issues in turn: (A) screening the complaint and (B) Boose’s motion 15 for the appointment of counsel. 16 A. Screening the Complaint 17 Given both sides’ arguments, the Court now screens Boose’s complaint under Section 18 1915. Federal courts are required to dismiss a case filed in forma pauperis if the court determines 19 at any time that the action is frivolous, fails to state a claim, or is directed against a defendant who 20 is immune. 28 U.S.C. § 1915(e)(2); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 21 banc). A “frivolous” complaint “lacks an arguable basis either in law or in fact.” Neitzke v. 22 Williams, 490 U.S. 319, 324 (1989). The Ninth Circuit has noted that Section 1915(e)(2)(B)(ii) 23 parallels the language of Federal Rule of Civil Procedure 12(b)(6). Barren v. Harrington, 152 24 F.3d 1193, 1194 (9th Cir. 1998). Both Rule 12(b)(6) and Section 1915(e)(2)(B) require a district 25 court to dismiss a complaint that fails to state a claim upon which relief can be granted. 26 The plaintiff’s complaint must contain “sufficient factual matter, accepted as true, to ‘state 27 a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 1 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that 2 the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). 3 Furthermore, a court “is not required to accept legal conclusions cast in the form of factual 4 allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELLIOT CASRAY BOOSE, Case No. 25-cv-03366-AMO
8 Plaintiff, ORDER SCREENING AND 9 v. DISMISSING COMPLAINT
10 ELON MUSK, et al., Re: Dkt. Nos. 49, 61, 62, 63, 65 Defendants. 11
12 13 Plaintiff Elliot Casray Boose, representing himself, initiated the above-captioned civil 14 action. Before the Court are several motions filed by Boose, as well as Defendants’ oppositions to 15 the same. Having read the parties’ papers and carefully considered their arguments and the 16 relevant legal authority, and good cause appearing, the Court screens the complaint under Title 28 17 U.S.C. § 1915, DISMISSES the complaint with leave to amend, DENIES Boose’s motion to 18 appoint counsel, and TERMINATES all remaining motions as moot, for the following reasons. 19 I. BACKGROUND 20 Before discussing the underlying facts, the Court recounts the relevant procedural history 21 for context. 22 A. Relevant Procedural History 23 Boose originally filed this lawsuit in the Superior Court of Gwinnett County, State of 24 Georgia (Civil Action File No. 24-A-08811-6), where he applied to proceed in forma pauperis 25 (“IFP”). See Dkt. No. 1-1 at 49-54. Defendants removed the action to the federal district court 26 covering Gwinnett County, the Northern District of Georgia. See Dkt. No. 1 (notice of removal). 27 Because Defendants paid the filing fee at the time of removal, no federal district court has yet 1 the Court might order service of process by the United States Marshal Service (“USMS”). See 2 Dkt. No. 61 (Boose’s motion requesting service pursuant to Rule 4(c)(3)); see also Dkt. No. 53 3 (Boose’s resubmission of application to proceed in forma pauperis following the Court’s earlier 4 order quashing service); Fed. R. Civ. P. 4(c)(3) (requiring a court to order service of process by 5 USMS “if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915”). In 6 significant part, Defendants oppose Boose’s motion requesting service of process by USMS based 7 on the absence of an order granting Boose permission to proceed IFP in this forum and any 8 associated order screening the complaint under Section 1915. See Dkt. No. 64. Consideration of 9 Boose’s IFP status therefore informs and resolves multiple portions of the pending motions, 10 including, most directly, Boose’s motion for the Court to order service of process by USMS. 11 Having reviewed Boose’s renewed IFP application, Dkt. No. 53, the Court GRANTS 12 Boose’s application and proceeds to screen the complaint pursuant to Title 28 U.S.C. § 1915 13 below. 14 B. Factual Background1 15 The Court briefly recaps the factual allegations in the original complaint.2 Boose alleges 16 that X Corp. operates the “social networking service, ‘X’ (formerly known as Twitter),” which 17 “enables account holders to distribute content via text, images, videos, and other multimedia-based 18 messages.” Dkt. 1-1 at 12-13. He alleges Musk is the “owner,” “Chief Financial Officer,” and 19 “Secretary” of X Corp. Id. at 10, 13. 20 Boose is a “gay male cross-dresser” who authored an “e-book.” Dkt. 1-1 at 10, 17. Boose 21 created his X account @ElliotBoose2023 in November 2022 to, among other things, “promote his 22 1 “The standard for determining whether a plaintiff has failed to state a claim upon which relief 23 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. 24 2012). In assessing a 12(b)(6) motion, all well-pleaded allegations of material fact are accepted as true, Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010), but the Court is “not 25 bound to accept as true a legal conclusion couched as a factual allegation,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 26
2 Because no court has reached the merits of Defendants’ motions to dismiss for failure to state a 27 claim, Dkt. Nos. 8 & 41, and because no court has granted Boose leave to amend, under Federal 1 e-book.” Id. at 10-11. On June 29, 2024, he “paid [for] X Ads to promote his e-book.” Id. at 10. 2 Boose’s account was subsequently “shadow banned[,] which prevents other users from interacting 3 with his page or posts.” Id. Boose’s initial advertisement was allegedly “paused shortly 4 after[ward],” and “X support” later sent him a message stating it had “identified . . . concerns” 5 with his advertisement. Id. at 11, 23. The message invited him “to make necessary adjustments,” 6 after which X Corp. would “re-review [his] account,” but Boose does not allege he made any of 7 the requested adjustments. Id. at 23. Boose contends X Corp.’s concerns were “[f]raudulent” 8 because X Corp. allegedly “saw Plaintiff was selling an e-book” whose “cover shows his face as a 9 male and as a female.” Id. at 18. 10 Plaintiff asserts three claims against Defendants: (1) fraud; (2) breach of contract; and 11 (3) “Sex Discrimination” in violation of the “Law of Georgia on the Elimination of All Forms of 12 Discrimination.” Id. at 5-7, 18-20. 13 II. DISCUSSION 14 The Court takes up two issues in turn: (A) screening the complaint and (B) Boose’s motion 15 for the appointment of counsel. 16 A. Screening the Complaint 17 Given both sides’ arguments, the Court now screens Boose’s complaint under Section 18 1915. Federal courts are required to dismiss a case filed in forma pauperis if the court determines 19 at any time that the action is frivolous, fails to state a claim, or is directed against a defendant who 20 is immune. 28 U.S.C. § 1915(e)(2); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 21 banc). A “frivolous” complaint “lacks an arguable basis either in law or in fact.” Neitzke v. 22 Williams, 490 U.S. 319, 324 (1989). The Ninth Circuit has noted that Section 1915(e)(2)(B)(ii) 23 parallels the language of Federal Rule of Civil Procedure 12(b)(6). Barren v. Harrington, 152 24 F.3d 1193, 1194 (9th Cir. 1998). Both Rule 12(b)(6) and Section 1915(e)(2)(B) require a district 25 court to dismiss a complaint that fails to state a claim upon which relief can be granted. 26 The plaintiff’s complaint must contain “sufficient factual matter, accepted as true, to ‘state 27 a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 1 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that 2 the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). 3 Furthermore, a court “is not required to accept legal conclusions cast in the form of factual 4 allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult 5 Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). 6 Courts liberally construe pro se pleadings at the screening stage. Wilhelm v. Rotman, 680 7 F.3d 1113, 1121 (9th Cir. 2012). Because Title 28 U.S.C. § 1915 gives courts authority to pierce 8 the veil of a complaint’s factual allegations, courts are not bound to accept at the screening stage 9 “claims describing fantastic or delusional scenarios” or factual contentions that are “clearly 10 baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). In a Section 1915 review, “[d]ismissal 11 is proper only if is clear that the plaintiff cannot prove any set of facts in support of the claim that 12 would entitle him to relief.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (citations 13 omitted). 14 Further, the Court construes Boose’s claims under California law based on the choice of 15 law provision contained in the applicable Terms of Service. See Dkt. No. 9-3 (“The laws of the 16 State of California . . . will govern these Terms and any dispute that arises between you and 17 Twitter.”); see also Dkt. No. 28 at 2 (order granting transfer to the Northern District of California, 18 relying in part on the same provision). 19 1. Fraud 20 In California, a plaintiff alleging fraud must establish the following elements: 21 “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of 22 falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and 23 (e) resulting damage.” Lovejoy v. AT&T Corp., 92 Cal. App. 4th 85, 93 (2001). And in federal 24 court, claims sounding in fraud are subject to Federal Rule of Procedure 9(b)’s heightened 25 pleading standard. “Parties must allege fraud with particularity under Federal Rule of Civil 26 Procedure 9(b), including the who, what, when, where, and how of the misconduct charged.” 27 Coronavirus Rep. v. Apple, Inc., 85 F.4th 948, 958 (9th Cir. 2023) (citing Depot, Inc. v. Caring for 1 Such averments must be specific enough to “give defendants notice of the particular misconduct . . 2 . so that they can defend against the charge and not just deny that they have done anything wrong.” 3 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Bly-Magee v. 4 California, 236 F.3d 1014, 1019 (9th Cir. 2001)). 5 Here, Boose alleges in conclusory fashion that X Corp. “gave [f]raudulent reason[s]” about 6 its “concerns” regarding his e-book advertisement. Dkt. 1-1 at 18. This allegation fails to identify 7 any allegedly fraudulent reasons about X Corp.’s “concerns,” and it fails to plausibly allege the 8 statement was false when made. Moreover, Boose also does not allege any facts that would show 9 X Corp.’s concerns were false or that it intended to defraud him. Nor does Boose allege he 10 actually or justifiably relied on a false statement by X Corp. because he presents no facts 11 demonstrating a change in his position based on X Corp.’s alleged misrepresentations. Finally, 12 Boose does not plausibly allege damages resulting from relying on X Corp.’s purported reasons 13 for allegedly interfering with his advertisement. Boose’s bare allegations not only fail to state a 14 claim on their own, they fall well short of the particularity required by Rule 9(b). Plaintiff does 15 not allege when he received the message with the purported reasons X Corp. stopped distributing 16 his advertisement on X, which X Corp. employee sent the message, how he was misled, or that 17 Defendants gained anything. He thus fails to state a claim for fraud. 18 2. Breach of Contract 19 To state a claim for breach of contract under California law, Plaintiff must plead facts 20 establishing: “(1) existence of the contract; (2) plaintiff’s performance or excuse for 21 nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” 22 CDF Firefighters v. Maldonado, 158 Cal. App. 4th 1226, 1239 (2008). 23 Here, Boose fails to plead a plausible breach-of-contract claim against Defendants because 24 he fails to offer sufficient factual support for several of the elements of the cause of action. For 25 example, Boose fails to allege breach of contract because the relevant Terms on which his claim is 26 based contradict his contention that X breached that contract by purportedly “not allowing” him 27 “to buy ads on X to promote his e-book.” Dkt. 1-1 at 19. Contrary to Boose’s theory of breach by 1 Corp. to run his advertisement. See Dkt. 1-1 at 24-41. Boose cannot state a claim for breach of 2 contract based on the Terms included within the complaint, and this cause of action therefore fails. 3 3. Sex Discrimination 4 Plaintiff also asserts a claim for “Sex Discrimination” under the law of a foreign country, 5 the Republic of Georgia, specifically under its law on the “Elimination of All Forms of 6 Discrimination.” Dkt. 1-1 at 5-7.3 As noted above, California law governs this dispute. See Dkt. 7 No. 9-3 (choice of law provision). Therefore, Boose’s purported “Sex Discrimination” claim 8 under the laws of the Republic of Georgia must fail as a matter of law. 9 Giving Boose the benefit of the doubt, as it must at this stage, the Court looks to whether 10 Boose alternatively states a claim for “sex discrimination” under California’s broad civil rights 11 protections, including the Unruh Act. The relevant portions of the Unruh Act read:
12 All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national 13 origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all 14 business establishments of every kind whatsoever. 15 Cal. Civ. Code § 51. “Thus, by its own terms, it is expressly limited to discrimination that takes 16 place within California’s borders.” Warner v. Tinder, Inc., 105 F. Supp. 3d 1083, 1099 (N.D. Cal. 17 2015) (collecting cases). Boose’s complaint does not identify any discrimination taking place 18 within California’s borders and instead focuses on the sex discrimination purportedly suffered in 19 the State of Georgia. Therefore, Boose’s claim for sex discrimination against Defendants fails as a 20 matter of law. 21 4. Leave to Amend 22 “Federal Rule of Civil Procedure 15(a) provides that leave to amend ‘shall be freely given 23 when justice so requires,’ but ‘[a] district court acts within its discretion to deny leave to amend 24 when amendment would be futile[.]’ ” Coronavirus Rep., 85 F.4th at 958 (quoting Chappel v. 25 3 From what the Court can find, the statutory text Boose includes within his complaint matches 26 that from the Republic of Georgia, not from any statutes of the State of Georgia. See International Labor Organization, NATLEX – Database of national labour, social security and related human 27 rights legislation; REPUBLIC OF GEORGIA: LAW ON THE ELIMINATION OF ALL FORMS OF 1 Lab’y Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000)); see also Ramirez v. Galaza, 334 F.3d 2 850, 861 (9th Cir. 2003) (“Leave to amend should be granted unless the pleading could not 3 possibly be cured by the allegation of other facts, and should be granted more liberally to pro se 4 plaintiffs.” (citation, internal quotation marks omitted)). 5 Here, because Boose’s cannot allege sex discrimination which took place in California, and 6 because California law applies to the dispute, it would be futile to grant Boose leave to amend his 7 sex discrimination. Accordingly, he may not raise that claim again in an amended complaint. It is 8 less clear that amendment of Boose’s fraud and breach of contract claims is futile. In an 9 abundance of caution, the Court grants Boose leave to amend those two claims only. 10 B. Motion to Appoint Counsel 11 Boose moves for appointment of counsel. Dkt. No. 63. “Generally, a person has no right 12 to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). However, a 13 court “may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. 14 § 1915(e)(1). Appointing counsel is discretionary and is granted only in “exceptional 15 circumstances.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). A finding of 16 exceptional circumstances requires “an evaluation of the likelihood of the plaintiff’s success on 17 the merits and an evaluation of the plaintiff’s ability to articulate his claims” without counsel in 18 light of the complexity of the legal issues involved. Agyeman v. Corr. Corp. of Am., 390 F.3d 19 1101, 1103 (9th Cir. 2004). 20 Here, there are no exceptional circumstances that warrant appointment of counsel at this 21 time. As discussed above, Boose has not demonstrated a likelihood that he will succeed on the 22 merits of his case. See, e.g., Koch v. City of Santa Cruz, No. 24-cv-07684-HSG, 2025 WL 23 215567, at *4 (N.D. Cal. Jan. 16, 2025) (denying motion to appoint counsel on this basis). 24 Additionally, the Court does not find that the issues in this case are complex, or that Boose is 25 unable to articulate his claims. Although Boose has failed to plausibly state a claim for the 26 reasons discussed above, this failure is a result of the legal deficiencies of his claims, and not due 27 to his lack of counsel or the complexity of the issues involved. Accordingly, the Court DENIES 1 Wl. CONCLUSION 2 For the foregoing reasons, the Court GRANTS Boose’s application to proceed IFP, screens 3 the pleading under Section 1915, DISMISSES the complaint pursuant to that screening, DENIES 4 || the motion to appoint counsel, and TERMINATES all remaining motions. Boose’s first amended 5 complaint shall be filed by no later than January 16, 2026. No additional parties or claims may be 6 added without leave of Court or stipulation of Defendants. 7 8 IT IS SO ORDERED. 9 Dated: December 19, 2025 10 □□ 11 : ARACELI MARTINEZ-OLGUIN 12 United States District Judge
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