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Paulo Mailo Jr v. Adam Crail; et al

January 10, 2012

PAULO MAILO JR.,
PLAINTIFF,
v.
ADAM CRAIL; ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER (1) GRANTING PLAINTIFF'S THIRD MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

I. INTRODUCTION

IN FORMA PAUPERIS; AND (2) DISMISSING SECOND AMENDED

On September 19, 2011, Plaintiff Paulo Mailo Jr. ("Plaintiff"), proceeding pro se, filed a: (1) Complaint against Defendants "Adam Crail, Shirley Pico, MPO Clark V. Kekauoha, Officer Joseph H. Lefcourt, Officer Dbega, Officer Nmurakami, and the Office of the Public Defender" (collectively, "Defendants") for wrongfully charging him with assault in the third degree and causing him to lose his job; and (2) Motion to Proceed In Forma Pauperis ("Motion for IFP"). On September 23, 2011, the court denied Plaintiff's Motion for IFP and dismissed the Complaint with leave to amend. See Doc. No. 4. The September 23, 2011 Order explained that the allegations of the Complaint were so conclusory that the court could not discern the basis of his claims. The September 23, 2011 Order further explained that Plaintiff must include factual allegations describing how each Defendant has injured him and how those specific facts create a plausible claim for relief.

On November 28, 2011, Plaintiff filed a Second Motion for IFP and an Amended Complaint, and on December 13, 2011, the court denied the Second Motion for IFP and dismissed the Amended Complaint with leave to amend. The November 28, 2011 Order again explained that the allegations of the Amended Complaint were conclusory and that Plaintiff must allege factual allegations describing the basis of his claims.

On January 5, 2012, Plaintiff filed his Second Amended Complaint ("SAC") and a Third Motion for IFP. Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing. Based on the following, the court GRANTS Plaintiff's Third Motion for IFP and DISMISSES the SAC. Because the SAC suffers from the same deficiencies as Plaintiff's previous pleadings, this dismissal is without leave to amend.

II. ANALYSIS

A. Motion for IFP

As the court has already explained, federal courts can authorize the commencement of any suit without prepayment of fees or security, by a person who submits an affidavit that includes a statement of all assets the person possesses, demonstrating he is unable to pay such costs or give such security. See 28 U.S.C. § 1915(a)(1). "[A]n affidavit is sufficient which states that one cannot because of [ ] poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339 (1948) (internal quotations omitted); see also United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (stating that the affidavit must "state the facts as to affiant's poverty with some particularity, definiteness and certainty" (internal quotation omitted)).

When reviewing a motion filed pursuant to § 1915(a), "[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty." Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). While § 1915(a) does not require a litigant to demonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must nonetheless show that she is "unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a).

Plaintiff's Third Motion for IFP indicates that he is not currently employed, is not receiving money from any other sources, owns a 2002 Nissan Quest, and has debts in the approximate amount of $5,900. Because Plaintiff has made the required showing under 28 U.S.C. § 1915 to proceed in forma pauperis (i.e., without prepayment of fees), the court GRANTS Plaintiff's Third Motion for IFP.

B. The SAC Is Dismissed Without Leave to Amend

The court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners").

The court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) if it fails to "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S.at 555). Rather, "[a] claim has facial plausibility when the plaintiff pleads ...


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