Goldup v. The City of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARRETT MICHAEL GOLDUP Case No.: 24-CV-01764-CAB-JLB

12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION TO 14 THE CITY OF SAN DIEGO, PROCEED IN FORMA PAUPERIS 15 Defendant. [ECF No. 2];

16 (2) DIRECTING U.S. MARSHAL TO 17 EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 18 U.S.C. § 1915 AND FED. R. CIV. P. 19 4(c)(3)

20 Plaintiff, a non-prisoner proceeding pro se, has filed a complaint alleging branches 21 of the San Diego Public Library denied him entry with his service dog on multiple 22 occasions. Plaintiff has not paid the civil filing fee required to commence this action, but 23 rather, has filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 24 [ECF No. 2.] 25 I. MOTION TO PROCEED IFP 26 Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of a 27 suit without prepayment of fees if the plaintiff submits an affidavit, including a statement 28 1 of all his or her assets, showing that he or she is unable to pay filing fees. The 2 determination of indigency falls within the district court’s discretion. Cal. Men’s Colony 3 v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 194 4 (1993). Plaintiff has submitted an affidavit that sufficiently shows he lacks the financial 5 resources to pay filing fees. Accordingly, the Court GRANTS Plaintiff’s motion to 6 proceed IFP pursuant to 28 U.S.C. § 1915(a). 7 II. INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 8 The Court is obligated to screen all cases filed IFP pursuant to 28 U.S.C. § 9 1915(e)(2)(B). See Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 10 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). Under that 11 provision, the Court “shall dismiss” the case, or any portion of it, if it determines that the 12 action is frivolous or malicious, fails to state a claim on which relief may be granted, or 13 seeks relief against a defendant who is immune from such relief. “The standard for 14 determining whether a plaintiff has failed to state a claim upon which relief can be 15 granted under 1915(e)(2)(b)(ii) is the same as the Federal Rule of Civil Procedure 16 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 17 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 18 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 19 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 20 The Court finds Plaintiff’s Complaint plausibly alleges claims against Defendant 21 City of San Diego, sufficient to meet the “low threshold” for proceeding past the sua sponte 22 1915(e)(2)(b) screening stage. See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 23 2012).1 24 25 26 27 1 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. 28 I Hl. CONCLUSION 2 Accordingly, the Court hereby GRANTS Plaintiff's motion to proceed in forma 3 || pauperis and ORDERS as follows: 4 1. The United States Marshal shall serve a copy of the complaint, summons, 5 || and order granting leave to proceed in forma pauperis upon Defendant as directed by 6 || Plaintiff on U.S. Marshal Form 285. All costs of service shall be advanced by the United 7 || States. 8 2. The Clerk shall issue a summons as to Plaintiff's Complaint [ECF No. 1] 9 forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendant. In 10 || addition, the Clerk shall provide Plaintiff with certified copies of this Order, his 11 ||Complaint, and the summons so that he may serve this Defendant. Upon receipt of this 12 ||“IFP Package,” Plaintiff must complete the USM Form 285s as completely and 13 || accurately as possible, include an address where the Defendant may be found and/or 14 || subject to service pursuant to S.D. Cal. CivLR 4.1c., and return it to the United States 15 || Marshal according to the instructions the Clerk provides. 16 4. Plaintiff shall serve upon Defendant or, if appearance has been entered by 17 || counsel, upon Defendant’s counsel, a copy of every further pleading or other document 18 |/submitted for consideration of the Court. Plaintiff shall include with the original paper to 19 || be filed with the Clerk of the Court a certificate stating the manner in which a true and 20 || correct copy of any document was served on Defendant or Defendant’s counsel and the 21 || date of service. Any paper received by a District Judge or Magistrate Judge that has not 22 || been filed with the Clerk or that fails to include a Certificate of Service will be 23 || disregarded. 24 IT IS SO ORDERED 25 ||Dated: October 16, 2024 € 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28