Bradshaw v. Trump, No. 1:2018cv01415 - Document 3 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS as follows: The Court finds that Plaintiff fails to set forth his assets with sufficient particularity to show that he is unable to pay the required filing fee. Moreover, Plaintiff fails to state any claim on which relief may be granted as the Complaint is devoid of any allegations. Accordingly, the Court HEREBY RECOMMENDS that: 1) Plaintiff's application to proceed pursuant to 28 U.S.C. §1915 be DENIED; 2) Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), t his action be DISMISSED based on Plaintiff's failure to state a claim on which relief may be granted; and 3) The Clerk of Court be directed to close this case. These findings and recommendations are submitted to the district judge assigned to t he case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, Plaintiff may file written objections with the Order signed by Magistrate Judge Erica P. Grosjean on 10/16/2018. (Rooney, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GARY BRADSHAW, Plaintiff, 11 v. 12 13 DONALD TRUMP, 14 Defendant. Case No. 1:18-cv-01415-DAD-EPG FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM AND THAT PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED 15 (ECF Nos. 1, 2) 16 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 17 18 19 I. 20 BACKGROUND On October 12, 2018, Gary Bradshaw (“Plaintiff”), proceeding pro se, commenced this 21 action by filing a Complaint against Donald Trump, the President of the United States of 22 America. (ECF No. 1). Plaintiff also filed an application to proceed in forma pauperis. (ECF 23 No. 2). 24 II. 25 APPLICATION TO PROCEED IN FORMA PAUPERIS A civil action may proceed despite a failure to prepay the entire filing fee only if the 26 party initiating the action is granted leave to proceed in forma pauperis. See Rodriguez v. Cook, 27 169 F.3d 1176, 1177 (9th Cir. 1999). The decision whether to grant leave to proceed in forma 28 pauperis is in the sound discretion of the court. See Calif. Men’s Colony v. Rowland, 939 F.2d 1 1 854, 858 (9th Cir. 1991) (“Section 1915 typically requires the reviewing court to exercise its 2 sound discretion in determining whether the affiant has satisfied the statute’s requirement of 3 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). “[T]here is no formula set forth by 4 statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 5 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). In applying to proceed in forma pauperis, a party must submit an affidavit that “state[s] 6 7 8 9 10 11 12 13 the facts as to [the] affiant’s poverty with some particularity, definiteness and certainty.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) (“The right to proceed in forma paupers is not an unqualified one. It is a privilege, rather than a right”). The party “need not be absolutely destitute to obtain benefits of the in forma pauperis statute.” Id. at 725. Nevertheless, the affidavit must show that he “cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Escobedo, 787 F.3d at 1235 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). 14 Here, Plaintiff fails to demonstrate that he is unable to pay the court’s filing fee due to 15 poverty or indigence. Plaintiff submits an incomplete affidavit that does not indicate his assets 16 with particularity, definiteness, and certainty. Accordingly, Plaintiff’s application to proceed in 17 forma pauperis is denied. 18 III. 19 SCREENING REQUIREMENT Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of an in forma pauperis 20 complaint to determine whether it “state[s] a claim on which relief may be granted,” is 21 “frivolous or malicious,” or “seek[s] monetary relief against a defendant who is immune from 22 such relief.” If the Court determines that the complaint fails to state a claim, it must dismiss the 23 complaint. Id. Leave to amend may be granted to the extent that the deficiencies of the 24 complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 25 1995). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 28 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 1 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 3 factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 4 556 U.S. at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as 5 true, legal conclusions are not. Id. at 678. 6 In determining whether a complaint states an actionable claim, the Court must accept 7 the allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 8 740 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, 9 Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s 10 favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be 11 held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 12 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally 13 construed after Iqbal). Here, Plaintiff’s Complaint is devoid of any allegations. The Complaint consists of 14 15 exhibits with indecipherable scribbles. Accordingly, it fails to state a claim on which relief may 16 be granted. 17 IV. 18 CONCLUSION AND RECOMMENDATIONS The Court finds that Plaintiff fails to set forth his assets with sufficient particularity to 19 show that he is unable to pay the required filing fee. Moreover, Plaintiff fails to state any claim 20 on which relief may be granted as the Complaint is devoid of any allegations. Accordingly, the 21 Court HEREBY RECOMMENDS that: 22 1. Plaintiff’s application to proceed pursuant to 28 U.S.C. §1915 be DENIED; 23 2. Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), this action be DISMISSED based on 24 25 26 Plaintiff=s failure to state a claim on which relief may be granted; and 3. The Clerk of Court be directed to close this case. These findings and recommendations are submitted to the district judge assigned to the 27 case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 28 served with these findings and recommendations, Plaintiff may file written objections with the 3 1 court. Such a document should be captioned, “Objections to Magistrate Judge’s Findings and 2 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 3 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 4 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 7 IT IS SO ORDERED. Dated: October 16, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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