Musgrove v. Hanifin et al, No. 3:2020cv00614 - Document 15 (S.D. Cal. 2020)
Court Description: ORDER Granting 2 Motion for Leave to Proceed in Forma Pauperis; Dismissing Third Amended Complaint Without Prejudice. Plaintiff is granted 30 days to cure the deficiencies in his Third Amended Complaint, as outlined above, by filing a Fourth Amended Complaint and serving a copy of it on Defendants. Signed by Judge Gonzalo P. Curiel on 8/4/20. (dlg)
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Musgrove v. Hanifin et al Doc. 15 Case 3:20-cv-00614-GPC-BLM Document 15 Filed 08/04/20 PageID.57 Page 1 of 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IRVIN MUSGROVE, 12 Case No.: 20-cv-00614-GPC-BLM ORDER: Plaintiff, 13 14 15 16 (1) GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, AND v. ANGIE HANIFIN, SUSANA SOTO, AND OCEANSIDE HOUSING AUTHORITY, 17 18 (2) DISMISSING THE THIRD AMENDED COMPLAINT WITHOUT PREJUDICE Defendants. 19 [ECF No. 2] 20 21 22 23 24 25 26 27 28 1 20-cv-00614-GPC-BLM Dockets.Justia.com Case 3:20-cv-00614-GPC-BLM Document 15 Filed 08/04/20 PageID.58 Page 2 of 6 1 On March 31, 2020, Plaintiff Irvin Musgrove, proceeding pro se, initiated this 2 action. ECF No. 1. On the same day, Plaintiff filed a motion to proceed in forma 3 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. Plaintiff sent Defendant 4 Keysa Machado, identified as Supervisor of Oceanside Housing Authority, a request for 5 waiver of service of summons. ECF No. 1 at 6. On May 19, 2020, Petitioner filed a First 6 Amended Complaint naming Angie Hanifin, Susana Soto, and Oceanside Housing 7 Authority as Defendants. ECF No. 7. On May 20, 2020, Petitioner filed a Second 8 Amended Complaint naming Angie Hanifin, Susana Soto, Margery Pierce, Keysa 9 Machado, and Oceanside Housing Authority as Defendants. ECF No. 8. Plaintiff filed a 10 declaration of service as to Margery Pierce, ECF No. 9, and as to Keysa Machado, ECF 11 Nos. 10, 11, and as to Margery Pierce. ECF No. 12. On June 3, 2020, Plaintiff filed a 12 Third Amended Complaint naming Angie Hanifin, Susana Soto, Margery Pierce, Keysa 13 Machado, and Oceanside Housing Authority as Defendants. ECF No. 13 (“TAC”). For 14 the following reasons, the Court GRANTS Plaintiff’s motion to proceed IFP, but 15 DISMISSES Plaintiff’s Third Amended Complaint (“TAC”) because it fails to state a 16 claim on which relief can be granted. 1 17 I. Background 18 A. 19 The following facts come from Plaintiff’s Third Amended Complaint filed on June 20 3, 2020. TAC. Plaintiff alleges that the Oceanside Housing Authority (“OHA”), through 21 his caseworker, Susana Soto, refused his Reasonable Accommodation Request (“RA”) First Reasonable Accommodation Request 22 23 24 25 26 27 28 1 Plaintiff filed a $400 filing fee on August 3, 2020. ECF No. 14. Plaintiff’s payment does not render Plaintiff’s motion to proceed IFP moot. See Powell v. Hoover, 956 F. Supp. 564, 567 (M.D. Pa. 1997) (“the motion is not thereby rendered moot because . . . any further filing fee, as for an appeal or petition for a writ of certiorari, would not have to be paid if the motion were to be granted.”). Further, the fact that the filing fee has been paid does not affect the authority of the court to dismiss the case, per 28 U.S.C. § 1915(h), which provides that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted.” Id. 2 20-cv-00614-GPC-BLM Case 3:20-cv-00614-GPC-BLM Document 15 Filed 08/04/20 PageID.59 Page 3 of 6 1 “for the final inspection.” TAC at 3. 2 Plaintiff alleges that as a result of the RAR refusal, 2 “the inspection passed” and the family’s “terminated voucher” was reinstated. Id. 3 Plaintiff does not explicitly state what the inspection was for, but it appears from the face 4 of the 4AC that the inspection focused on whether or not certain repair were made and 5 Plaintiff argues that “[n]one of the repairs that were needed were tenant caused.” Id. 6 Plaintiff alleges that he told Soto and Hanifin that he would face hardships if forced to 7 move from his apartment due to his impending hip surgery. Id. 8 As a result of the termination of his housing voucher, Plaintiff and his son had no 9 housing and did not have housing for the subsequent year and a half. Plaintiff also states 10 that he suffers from post-traumatic stress disorder (“PTSD”) and chronic depression, and 11 that he has been separated from his son. Id. 12 B. 13 Plaintiff states that his psychiatrist made a RAR to the OHA Director, Margery 14 Pierce, on the basis of his PTSD and chronic depression. Plaintiff had a meeting with 15 Hanifin at an unidentified time and at this meeting, Hanifin told Plaintiff that OHA is not 16 required to help clients with finding apartments and that “an extension wouldn’t be 17 effective.” Id. at 4. Plaintiff alleges that Hanifin denied the validity of the “120 days of 18 additional residency.” Id. Plaintiff argues that Hanifin’s refusal of his RAR due his 19 handicapped state was the cause of his lack of stable housing, and that Machado was 20 “also aware [and] involved with the obligation to intervene in order to maintain OHA 21 integrity.” Id. Plaintiff states that he is now living at Veterans Villa in Escondido, 22 California. Id. Second Reasonable Accommodation Request 23 Plaintiff seeks relief for the over 18-month period during which he was unhoused, 24 the 12-month period during which his “family has been torn apart,” and additionally the 25 “traumatic affects [sic] homelessness [and] 12+ months that CPS custody has had on [his 26 27 28 2 All page numbers refer to the CM/ECF pagination. 3 20-cv-00614-GPC-BLM Case 3:20-cv-00614-GPC-BLM Document 15 Filed 08/04/20 PageID.60 Page 4 of 6 1 son], the 18+ months [Plaintiff has] had to endure the extreme pain in [his] right hip due 2 to postponing surgery from being homeless, the malicious intent of [Hanifin and Soto] to 3 deny RAR’s to be reinstated or inspection to be rescheduled,” and Hanifin’s refusal to 4 help “after finding out [his] disability caused [his] inability to effectively apartment 5 search” which extended his homelessness by a few additional months. Id. at 5. Plaintiff 6 seeks to be compensated for these violations. Id. Petitioner also seeks to proceed IFP. 7 ECF No. 2. 8 II. 9 10 Discussion A. Plaintiff May Proceed IFP A petitioner instituting any civil action, suit, or proceeding in federal district court 11 must pay a $350 filing fee and a $50 administrative fee. 28 U.S.C. § 1914. However, a 12 federal district court may waive the filing and administrative fees by granting the 13 petitioner leave to proceed IFP. 28 U.S.C. § 1915(a)(1). To proceed IFP, a petitioner 14 must submit an affidavit that includes a statement of all assets and demonstrates an 15 inability to pay the filing fee. 28 U.S.C. § 1915(a); see also Local Civ. R. 3.2. The 16 affidavit is “sufficient where it alleges that the [petitioner] cannot pay the court costs and 17 still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 18 2015) (citation omitted). “The granting or refusing of permission to proceed [IFP] is a 19 matter committed to the sound discretion of the district court.” Skelly v. U.S. Dep't of 20 Educ., No. 19-CV-1812-GPC, 2019 WL 6840398, at *2 (S.D. Cal. Dec. 16, 2019) 21 (quoting Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)). 22 Petitioner has filed an application explaining his financial circumstances under 23 penalty of perjury. ECF No. 2. Petitioner indicates he is not employed, has not received 24 any income within the past twelve months. Id. Plaintiff’s sole listed asset is 3.2TL 25 Acura motor vehicle, which he states is valued at $1,000. Id. at 3. In light of these 26 affirmations, Plaintiff has “sufficiently show[ed] that he lacks the financial resources to 27 pay filing fees.” See Dillard v. So, No. 12-CV-2958-BTM, 2013 WL 4857692, at *1 28 (S.D. Cal. Sept. 11, 2013). 4 20-cv-00614-GPC-BLM Case 3:20-cv-00614-GPC-BLM Document 15 Filed 08/04/20 PageID.61 Page 5 of 6 1 B. Plaintiff’s Claims Fail in Part Under 28 U.S.C. § 1915(e)(2). 2 A motion proceeding IFP “shall” be dismissed if the action “(i) is frivolous or 3 malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks 4 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 5 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (noting that 28 U.S.C. 6 § 1915(e)(2)(B) is not limited to prisoners). The Court interprets pleadings filed by pro 7 se litigants “liberally.” Draper v. Rosario, 836 F.3d 1072, 1080 (9th Cir. 2016). 8 However, Section 1915 “accords judges not only the authority to dismiss a claim based 9 on an indisputably meritless legal theory, but also the unusual power to pierce the veil of 10 the complaint's factual allegations and dismiss those claims whose factual contentions are 11 clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). 12 Here, Plaintiff has failed to state a state a claim on which relief may be granted. 13 Plaintiff has failed to cite any federal or state statute or any case law under which he 14 brings his claim. A complaint may be dismissed as frivolous “where it lacks an arguable 15 basis either in law or in fact.” Neitzke, 490 U.S. at 325. A district court “may dismiss a 16 complaint on its own initiative for failure to state a claim . . . if the inadequacy of the 17 complaint is apparent as a matter of law.” Hernandez v. McClanahan, 996 F. Supp. 975, 18 979 (N.D. Cal. 1998). Since Plaintiff has failed to identify the law that supports his 19 claims, the Court dismisses Plaintiff’s complaint in full. 3 20 “A pro se litigant must be given leave to amend his or her complaint, and some 21 notice of its deficiencies, unless it is absolutely clear that the deficiencies of the 22 complaint could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 23 (9th Cir. 1995) (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). To proceed 24 25 26 27 28 3 The Court notes that in cases wherein litigants generally challenge denials of Reasonable Accommodation Requests, plaintiffs have raised challenges under Fair Housing Amendments Act of 1988 (“FHAA”), 42 U.S.C. § 3601 et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 1201, et seq., as well as other federal and state laws. See e.g., Burgess v. Hous. Auth. of Alameda Cty., No. C0104098 MJJ, 2006 WL 7347315, at *5 (N.D. Cal. Dec. 30, 2006). 5 20-cv-00614-GPC-BLM Case 3:20-cv-00614-GPC-BLM Document 15 Filed 08/04/20 PageID.62 Page 6 of 6 1 in federal court, Petitioner must be able to demonstrate “an injury in fact, that is fairly 2 traceable to the challenged conduct of the defendant, and that is likely to be redressed by 3 a favorable judicial decision.” M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018). The 4 Court grants Plaintiff leave to amend within the next 30 days of the publication date of 5 this order. 6 III. 7 Conclusion For the foregoing reasons, the Court GRANTS Petitioner’s motion to proceed IFP 8 pursuant to 28 U.S.C. § 1915(a). The Court further DISMISSES the Third Amended 9 Complaint as it “fails to state a claim for which relief can be granted” under 28 U.S.C. § 10 1915(e)(2). Plaintiff is GRANTED 30 days to cure the deficiencies in his Third 11 Amended Complaint, as outlined above, by filing a Fourth Amended Complaint and 12 serving a copy of it on Defendants. 13 14 IT IS SO ORDERED. 15 Dated: August 4, 2020 16 17 18 19 20 21 22 23 24 25 26 27 28 6 20-cv-00614-GPC-BLM
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