1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Christopher Gerard Frye, No. CV-23-00937-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Milia M. Cohen, et al.,
13 Defendants. 14 15 16 At issue is pro se Plaintiff Christopher Gerard Frye’s Application for Leave to 17 Proceed In Forma Pauperis (Docs. 2 sealed, 15),1 which he filed concurrently with his 18 Complaint (Doc. 1, “Compl.”). Plaintiff has also filed a “Motion to Order Defendants to 19 Immediately Cease All Collection Actions Targeting Defendant By 06/05/2023” (Doc. 6). 20 For the reasons set forth below, the Court denies Plaintiff’s In Forma Pauperis Application, 21 dismisses his Complaint, and denies as moot his Motion requesting injunctive relief. 22 I. LEGAL STANDARDS 23 A. 28 U.S.C. § 1915 24 The Court may authorize a party to commence a civil action without prepaying court 25 fees—to proceed in forma pauperis (“IFP”)—if the person submits an affidavit attesting to 26 their poverty. 28 U.S.C. § 1915(a)(1). Although a plaintiff seeking IFP status need not be 27 1 Plaintiff’s initially-filed Application is at Docket Entry 2, which the Court ordered be 28 placed under seal because it referred to a minor child by name. (Doc. 14.) Pursuant to the Court’s Order, Plaintiff filed a corrected version of the Application at Docket Entry 15. 1 “absolutely destitute,” he or she “must allege poverty ‘with some particularity, definiteness 2 and certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (quoting 3 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). “[T]here is no formula set 4 forth by statute, regulation, or case law to determine when someone is poor enough to earn 5 IFP status.” Id. at 1235. The determination is within the district court’s discretion. Cal. 6 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds by 7 506 U.S. 194 (1993). 8 For cases in which a party is permitted to proceed IFP, 28 U.S.C. § 1915(e)(2) 9 provides that a district court “shall dismiss the case at any time if the court determines” that 10 the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious”; 11 “fails to state a claim on which relief may be granted”; or “seeks monetary relief against a 12 defendant who is immune from such relief.” The statute applies to all IFP proceedings. Lopez 13 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). “It is also clear that Section 1915(e) not only 14 permits but requires a district court to dismiss an in forma pauperis complaint that fails to 15 state a claim.” Id. at 1127 (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). 16 B. Pleading Requirements 17 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint include “a short and 18 plain statement of the claim showing that the pleader is entitled to relief.” The complaint 19 must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 20 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 21 v. Twombly, 550 U.S. 544, 570 (2007)). A dismissal under Rule 12(b)(6) for failure to state 22 a claim can be based on either (1) the lack of a cognizable legal theory or (2) insufficient 23 facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 24 699 (9th Cir. 1990). The Court is to construe a pro se plaintiff’s complaint “liberally” and 25 afford the plaintiff “the benefit of any doubt.” Watison v. Carter, 668 F.3d 1108, 1112 (9th 26 Cir. 2012) (citation omitted). However, “a liberal interpretation of a civil rights complaint 27 may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l 28 Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (citation omitted). 1 II. ANALYSIS 2 Plaintiff’s IFP Application is deficient in several respects. First, the Affidavit in 3 Support is unsigned. The Local Rules require that declarations in support of requests to 4 proceed IFP be signed and executed under penalty of perjury. LRCiv 3.3. On the merits, 5 Plaintiff has not shown he lacks sufficient funds to pay the filing fee. Plaintiff states he has 6 a total monthly income of $6,900.00, which would put him above the $1,100 median 7 national weekly earnings. See Bur. of Lab. Stats., “News Release, Usual Weekly Earnings 8 of Wage and Salary Workers, First Quarter 2023” (April 18, 2023), available at 9 https://www.bls.gov/news.release/pdf/wkyeng.pdf. Moreover, Plaintiff states he has total 10 monthly expenses of $5,969.00, substantially less than his income, and also states he has 11 $1,300.00 in cash in a checking account. In short, Plaintiff has failed to demonstrate that 12 he “cannot pay the court costs and still afford the necessities of life.” Escobedo, 787 F.3d 13 at 1234 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). 14 In any event, Plaintiff’s Complaint fails to state a claim for which relief may be 15 granted. Plaintiff alleges that Defendants have “institutionalized a system” of fabricating 16 “fictitious scenarios” to justify taxing former residents of California, thereby “seizing 17 moneys they are not entitled to as [sic] resulted in billions of dollars stolen from the 18 treasuries of all other 49 states by taking money from their citizens that otherwise would 19 have been spent in their new states of residence.” (Compl. at 4.) He seeks an injunction 20 against California’s collection of this purportedly unlawful tax and a refund of past- 21 collected tax. (Id. at 5–6.) He has named California’s Franchise Tax Board (“FTB”) as a 22 Defendant, alongside the FTB’s Director and the state’s Governor. As the asserted basis 23 for this Court’s federal-question jurisdiction, Plaintiff cites “[i]llegal seizure of assets 24 across state lines,” “[t]axation without representation,” and “[d]iversion of tax revenue.” 25 (Id. at 3.) He does not reference any federal statutory or constitutional cause of action. 26 As an initial matter, it is simply not plausible that Defendants have engaged in the 27 unlawful scheme Plaintiff alleges and that Plaintiff has just now uncovered it. Plaintiff also 28 appears to be attempting to assert claims on behalf of residents of all States in the union 1 other than California, which he lacks standing to do. See Sessions v. Morales-Santana, 582 2 U.S.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Christopher Gerard Frye, No. CV-23-00937-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Milia M. Cohen, et al.,
13 Defendants. 14 15 16 At issue is pro se Plaintiff Christopher Gerard Frye’s Application for Leave to 17 Proceed In Forma Pauperis (Docs. 2 sealed, 15),1 which he filed concurrently with his 18 Complaint (Doc. 1, “Compl.”). Plaintiff has also filed a “Motion to Order Defendants to 19 Immediately Cease All Collection Actions Targeting Defendant By 06/05/2023” (Doc. 6). 20 For the reasons set forth below, the Court denies Plaintiff’s In Forma Pauperis Application, 21 dismisses his Complaint, and denies as moot his Motion requesting injunctive relief. 22 I. LEGAL STANDARDS 23 A. 28 U.S.C. § 1915 24 The Court may authorize a party to commence a civil action without prepaying court 25 fees—to proceed in forma pauperis (“IFP”)—if the person submits an affidavit attesting to 26 their poverty. 28 U.S.C. § 1915(a)(1). Although a plaintiff seeking IFP status need not be 27 1 Plaintiff’s initially-filed Application is at Docket Entry 2, which the Court ordered be 28 placed under seal because it referred to a minor child by name. (Doc. 14.) Pursuant to the Court’s Order, Plaintiff filed a corrected version of the Application at Docket Entry 15. 1 “absolutely destitute,” he or she “must allege poverty ‘with some particularity, definiteness 2 and certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (quoting 3 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). “[T]here is no formula set 4 forth by statute, regulation, or case law to determine when someone is poor enough to earn 5 IFP status.” Id. at 1235. The determination is within the district court’s discretion. Cal. 6 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds by 7 506 U.S. 194 (1993). 8 For cases in which a party is permitted to proceed IFP, 28 U.S.C. § 1915(e)(2) 9 provides that a district court “shall dismiss the case at any time if the court determines” that 10 the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious”; 11 “fails to state a claim on which relief may be granted”; or “seeks monetary relief against a 12 defendant who is immune from such relief.” The statute applies to all IFP proceedings. Lopez 13 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). “It is also clear that Section 1915(e) not only 14 permits but requires a district court to dismiss an in forma pauperis complaint that fails to 15 state a claim.” Id. at 1127 (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). 16 B. Pleading Requirements 17 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint include “a short and 18 plain statement of the claim showing that the pleader is entitled to relief.” The complaint 19 must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 20 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 21 v. Twombly, 550 U.S. 544, 570 (2007)). A dismissal under Rule 12(b)(6) for failure to state 22 a claim can be based on either (1) the lack of a cognizable legal theory or (2) insufficient 23 facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 24 699 (9th Cir. 1990). The Court is to construe a pro se plaintiff’s complaint “liberally” and 25 afford the plaintiff “the benefit of any doubt.” Watison v. Carter, 668 F.3d 1108, 1112 (9th 26 Cir. 2012) (citation omitted). However, “a liberal interpretation of a civil rights complaint 27 may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l 28 Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (citation omitted). 1 II. ANALYSIS 2 Plaintiff’s IFP Application is deficient in several respects. First, the Affidavit in 3 Support is unsigned. The Local Rules require that declarations in support of requests to 4 proceed IFP be signed and executed under penalty of perjury. LRCiv 3.3. On the merits, 5 Plaintiff has not shown he lacks sufficient funds to pay the filing fee. Plaintiff states he has 6 a total monthly income of $6,900.00, which would put him above the $1,100 median 7 national weekly earnings. See Bur. of Lab. Stats., “News Release, Usual Weekly Earnings 8 of Wage and Salary Workers, First Quarter 2023” (April 18, 2023), available at 9 https://www.bls.gov/news.release/pdf/wkyeng.pdf. Moreover, Plaintiff states he has total 10 monthly expenses of $5,969.00, substantially less than his income, and also states he has 11 $1,300.00 in cash in a checking account. In short, Plaintiff has failed to demonstrate that 12 he “cannot pay the court costs and still afford the necessities of life.” Escobedo, 787 F.3d 13 at 1234 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). 14 In any event, Plaintiff’s Complaint fails to state a claim for which relief may be 15 granted. Plaintiff alleges that Defendants have “institutionalized a system” of fabricating 16 “fictitious scenarios” to justify taxing former residents of California, thereby “seizing 17 moneys they are not entitled to as [sic] resulted in billions of dollars stolen from the 18 treasuries of all other 49 states by taking money from their citizens that otherwise would 19 have been spent in their new states of residence.” (Compl. at 4.) He seeks an injunction 20 against California’s collection of this purportedly unlawful tax and a refund of past- 21 collected tax. (Id. at 5–6.) He has named California’s Franchise Tax Board (“FTB”) as a 22 Defendant, alongside the FTB’s Director and the state’s Governor. As the asserted basis 23 for this Court’s federal-question jurisdiction, Plaintiff cites “[i]llegal seizure of assets 24 across state lines,” “[t]axation without representation,” and “[d]iversion of tax revenue.” 25 (Id. at 3.) He does not reference any federal statutory or constitutional cause of action. 26 As an initial matter, it is simply not plausible that Defendants have engaged in the 27 unlawful scheme Plaintiff alleges and that Plaintiff has just now uncovered it. Plaintiff also 28 appears to be attempting to assert claims on behalf of residents of all States in the union 1 other than California, which he lacks standing to do. See Sessions v. Morales-Santana, 582 2 U.S. 47, 57 (2017) (recognizing a plaintiff generally “must assert his own legal rights” and 3 “cannot rest his claim to relief on the legal rights . . . of third parties”). 4 Moreover, “[a] suit by private parties seeking to impose a liability which must be 5 paid from public funds in the state treasury is barred by the Eleventh Amendment.” 6 Edelman v. Jordan, 415 U.S. 651, 663 (1974). To the extent Plaintiff is attempting to assert 7 a claim under 42 U.S.C. § 1983, state agencies and state officials acting in their official 8 capacities are also not “persons” against whom a claim for monetary relief can be made. 9 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). Plaintiff’s claim for 10 injunctive relief runs afoul of the Tax Injunction Act, which provides that “district courts 11 shall not enjoin, suspend or retrain the assessment, levy or collection of any tax under State 12 law where a plain, speedy and efficient remedy may be had in the courts of such State.” 13 28 U.S.C. § 1341. “By its plain language, the Act deprives federal district courts of subject 14 matter jurisdiction over actions for injunctive relief from state taxation schemes.” Marvin 15 F. Poer & Co. v. Counties of Alameda, 725 F.2d 1234, 1235 (9th Cir. 1984). 16 Given these defects, Plaintiff’s Complaint must be dismissed. See Lopez, 203 F.3d 17 at 1129; see also Hunt v. County of Orange, 672 F.3d 606, 617 (9th Cir. 2012) (recognizing 18 district courts’ authority to dismiss a complaint sua sponte under Rule 12(b)(6) “when it is 19 clear that the plaintiff has not stated a claim upon which relief may be granted”) (quoting 20 Trujillo v. Crescent Jewelers, 243 F.3d 550 (9th Cir. 2000)). The Court will not grant 21 Plaintiff leave to amend his Complaint because it would be futile in light of the deficiencies 22 identified above. See Lopez, 203 F.3d at 1130. 23 IT IS THEREFORE ORDERED denying Plaintiff’s Application for Leave to 24 Proceed In Forma Pauperis (Docs. 2 sealed, 15) and dismissing his Complaint (Doc. 1) 25 with prejudice. 26 IT IS FURTHER ORDERED denying as moot Plaintiff’s “Motion to Order 27 Defendants to Immediately Cease All Collection Actions Targeting Defendant By 28 06/05/2023” (Doc. 6). 1 IT IS FURTHER ORDERED directing the Clerk of Court to close this matter. 2 Dated this 26th day of June, 2023. CN
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