(PS) Kilpatrick v. Baymark Financial Inc., No. 2:2009cv01729 - Document 3 (E.D. Cal. 2009)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 09/10/09 GRANTING 2 Motion to Proceed IFP; and RECOMMENDING that this action be dismissed. Matter referred to Judge England. Objections to F&R due within 10 days. (Streeter, J)

Download PDF

(PS) Kilpatrick v. Baymark Financial Inc. Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ELSINA KILPATRICK, Plaintiff, 11 vs. 12 13 No. CIV S-09-1729 MCE KJM PS BAYMARK FINANCIAL INC., ORDER AND Defendant. 14 FINDINGS AND RECOMMENDATIONS / 15 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority 16 17 pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this 18 court by Local Rule 72-302(c)(21). 19 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is 20 unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in 21 forma pauperis will be granted. 28 U.S.C. § 1915(a). The federal in forma pauperis statute authorizes federal courts to dismiss a case if 22 23 the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be 24 granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). 26 ///// Dockets.Justia.com 1 A claim is legally frivolous when it lacks an arguable basis either in law or in 2 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227- 3 28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. 5 Neitzke, 490 U.S. at 327. 6 A complaint, or portion thereof, should only be dismissed for failure to state a 7 claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set 8 of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & 9 Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer 10 v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a 11 complaint under this standard, the court must accept as true the allegations of the complaint in 12 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 13 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, 14 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 15 In this action, plaintiff seeks a refund of the balance of her security deposit after 16 moving out of an apartment. There is no basis for federal jurisdiction evident in the complaint. 17 It is readily apparent that plaintiff cannot meet the statutory requirement for the amount in 18 controversy for diversity jurisdiction. 28 U.S.C. § 1332. At best, it appears plaintiff states a 19 claim that should have been brought in the first instance as a small claims action in the state 20 court. The action should therefore be dismissed. 21 22 Accordingly, IT IS HEREBY ORDERED that plaintiff's request to proceed in forma pauperis is granted; and 23 IT IS HEREBY RECOMMENDED that this action be dismissed. 24 These findings and recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten 26 days after being served with these findings and recommendations, any party may file written 2 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections 3 shall be served and filed within ten days after service of the objections. The parties are advised 4 that failure to file objections within the specified time may waive the right to appeal the District 5 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: September 10, 2009. 7 8 006 9 kilpatrick.ifp-57 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.