Allen v. T Mobile et al, No. 6:2014cv01206 - Document 6 (D. Or. 2014)

Court Description: Opinion and Order: Plaintiff's motion to proceed in forma pauperis 2 is Granted and plaintiff's complaint 1 is Dismissed with leave to amend. Plaintiff is allowed 30 days from the date of this order to file an amended complaint curing the deficiencies identified. Signed on 8/1/2014 by Judge Michael J. McShane. (cp)

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Allen v. T Mobile et al Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EARL DEAN ALLEN, Plaintiff, Civ. No. 6:14-cv-01206-MC v. OPINION AND ORDER T MOBILE, ATT, and Verizon, Defendants. _____________________________ MCSHANE, Judge: Plaintiff, pro se, brings this motion to proceed in forma pauperis, ECF No. 2, and an action against T-Mobile, AT&T, and Verizon Wireless for unspecified claims,1 ECF No. 1. This Court may dismiss a claim sua sponte under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (citations omitted). Likewise, if a plaintiff proceeds in forma pauperis, this Court is required to dismiss “the case at any time if the court determines that” the action or appeal is “frivolous or malicious” or “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). Upon review, plaintiff’s motion to proceed in forma pauperis, ECF No. 2, is GRANTED, and plaintiff’s complaint, ECF No. 1, is DISMISSED with leave to amend. STANDARD OF REVIEW “In civil rights cases where the plaintiff appears pro se, [this Court] must construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. L.A. 1 Plaintiff did not indicate the “nature of the suit” on the civil cover sheet is submitted to this Court. Compl. 1, ECF No. 1-1. 1 – OPINION AND ORDER Dockets.Justia.com Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citations omitted). This Court must give a pro se litigant “leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Id. (citations and internal quotation marks omitted). “Moreover, before dismissing a pro se civil rights complaint for failure to state a claim, [this Court] must give the plaintiff a statement of the complaint’s deficiencies.” Id. DISCUSSION Plaintiff, in his complaint, seeks relief from alleged privacy violations and possible billing disputes. 2 To survive this assessment under FRCP 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under this standard, plaintiff’s alleged facts must constitute “more than a sheer possibility that a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This Court must assume that the allegations contained in the complaint are true. Id. Plaintiff’s allegations, at least as currently articulated, are insufficient to state a claim. To properly state a claim, plaintiff’s complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FRCP 8(a)(2). 3 Because plaintiff’s allegations are insufficient to demonstrate “plausibility,” plaintiff’s complaint is DISMISSED with leave to amend. CONCLUSION 2 Plaintiff contends that the telecommunication providers “track [him]” on his I-Phone. See Compl. 3–5, ECF No. 1. For example, plaintiff could potentially assert a claim for “intrusion upon seclusion” as an “invasion of privacy” tort. Trout v. Umatilla Cnty. Sch. Dist. UH3-Milton-Freewater (McLoughlin Union High Sch.), 77 Or. App. 95, 99 (1985). “A defendant is liable for intruding upon the seclusion of another ‘only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.’” Id. at 100 (quoting Restatement (Second) Torts § 625B (1977)). 3 2 – OPINION AND ORDER For these reasons, plaintiff’s motion to proceed in forma pauperis, ECF No. 2, is GRANTED, and plaintiff’s complaint, ECF No. 1, is DISMISSED with leave to amend. Plaintiff is allowed 30 days from the date of this order to file an amended complaint curing the deficiencies identified above. IT IS SO ORDERED. DATED this 1st day of August, 2014. ___________s/Michael J. McShane_____________ Michael J. McShane United States District Judge 3 – OPINION AND ORDER

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