noting that 6 ||Claims dismissed with leave to amend which are not re-alleged in an amended pleading 7 ||may be “considered waived if not repled”
How later courts described this case
- noting that 6 ||Claims dismissed with leave to amend which are not re-alleged in an amended pleading 7 ||may be “considered waived if not repled”
- “[A]n amended pleading supersedes the 5 || original.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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8 SOUTHERN DISTRICT OF CALIFORNIA
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10 DAVID JOHN THISTLE, Case No.: 21cv2071-LL-KSC
Plaintiff,
11 ORDER:
12 v. (1) DENYING MOTION TO
PROCEED IN FORMA
13 THE STATE OF OHIO, PAUPERIS
14 Defendant. (2) DISMISSING COMPLAINT
[ECF No. 2]
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17 I. INTRODUCTION
18 Presently before the Court is the Motion to Proceed In Forma Pauperis (“IFP”) of
19 Plaintiff David John Thistle (“Plaintiff”). ECF No. 2 (“Mot.”). Plaintiff, proceeding pro
20 se,1 alleges that the Ohio Secretary of State’s website contains unconstitutional limitations
21 on candidate eligibility to run for the United States House of Representatives. See
22 generally ECF No. 1 (“Complaint” or “Compl.”). Having considered carefully Plaintiff’s
23 Complaint, IFP Motion, and the applicable law, the Court (1) DENIES Plaintiff’s Motion
24 to Proceed IFP and (2) DISMISSES the Complaint without prejudice.
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1 In reviewing the instant motion, the Court is mindful that “[a] document filed pro se is to
27 be liberally construed … and a pro se [pleading], however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
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1 II. BACKGROUND
2 Plaintiff alleges that “while researching The OHIO Secretary of State’s Official
3 Website to become an ‘Official Ballot Candidate for the Office of U.S. Representative,’”
4 Plaintiff discovered that the website unconstitutionally sought to “limit and prevent
5 otherwise fully qualified Ballot Candidates” from running for office. Compl. at 2–3.2
6 Plaintiff’s does not allege the specific language on the website he takes issue with, but he
7 appears to contend that the website imposes limitations on candidates more stringent than
8 Article 1 of the U.S. Constitution, which only requires that a Representative “when elected,
9 be an Inhabitant of that State in which he shall be chosen.” U.S. Const. art. I, § 2.
10 III. LEGAL STANDARD
11 A. In Forma Pauperis Motion
12 Under 28 U.S.C. § 1915(a), the Court may authorize a plaintiff to pursue a case
13 without payment of the filing fee. Whether an affiant has satisfied § 1915(a) falls within
14 “the reviewing court[’s] . . . sound discretion.” California Men’s Colony v. Rowland, 939
15 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993). A party need
16 not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co.,
17 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking IFP status must allege poverty
18 ‘with some particularity, definiteness, and certainty.’” Escobedo v. Applebees, 787 F.3d
19 1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 F.3d 938, 940 (9th Cir.
20 1981)). “An affidavit in support of an IFP application is sufficient where it alleges that the
21 affiant cannot pay the court costs and still afford the necessities of life.” Id. However, “the
22 same even-handed care must be employed to assure that federal funds are not squandered
23 to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor
24 who is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586
25 F. Supp. 848, 850 (D. R.I. 1984).
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2 Unless otherwise indicated, all page number references are to the ECF generated page
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1 B. Screening
2 The Court is obligated to screen all cases filed IFP pursuant to 28 U.S.C. §
3 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam)
4 (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners proceeding IFP); see
5 also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28
6 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss a complaint,
7 or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages
8 from defendants who are immune. See Lopez, 203 F.3d at 1126–27. Courts “may consider
9 facts contained in documents attached to the complaint” to determine whether the
10 complaint states a claim for relief. Nat’l Assoc. for the Advancement of Psychoanalysis v.
11 Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000). “The purpose of [screening]
12 is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of
13 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations
14 omitted).
15 IV. DISCUSSION
16 A. In Forma Pauperis Motion
17 The Court finds that Plaintiff has not met his burden of demonstrating his indigence
18 with particularity, definiteness, or certainty. In Escobedo, for example, the filing fees
19 constituted 40% of the plaintiff’s monthly income before factoring in her expenses.
20 Escobedo, 787 F.3d at 1235. Taking into account the plaintiff’s rent and debt payments,
21 the filing fee would have required the entirety of two months’ worth of her remaining funds,
22 meaning that the plaintiff “would have to forgo eating during those sixty days, to save up
23 to pay the filing fee.” Id. Under those circumstances, the Ninth Circuit determined that
24 paying the filing fee would constitute a significant financial hardship to the plaintiff. Id.
25 Accordingly, the court reversed the magistrate judge’s ruling denying the plaintiff IFP
26 status. Id. at 1236.
27 Here, Plaintiff’s IFP motion indicates that his monthly income is $4,620.00. Mot.
28 at 2. Plaintiff indicates that his only asset is a 2016 Kia Soul, and he has $5.23 in a checking
1 account and $20.00 in a savings account. Id. at 3. His monthly expenses average $4,850.00
2 and consist of the following: mortgage ($2,980.00), utilities ($1,000.00), laundry and dry
3 cleaning ($100.00), home insurance ($200.00), car payment ($500.00), and credit card
4 payment ($70.00). Id. at 4. Plaintiff claims that “my retirement pay is not enough to live
5 on in C[alifornia].” Id. at 5. Before factoring in expenses, the $402.00 filing fee3
6 constitutes less than 10% of Plaintiff’s monthly income.
7 There are inconsistencies in Plaintiff’s IFP application. For example, Plaintiff avers
8 his average monthly expenses exceed his monthly income by $230.00; however, Plaintiff
9 does not explain how he pays the difference every month when he only has $25.00 in his
10 bank accounts and no listed assets other than his vehicle. Section 1915(a)(1) requires that
11 Plaintiff attest to “all assets [he] possesses.” 28 U.S.C. § 1915(a)(1) (emphasis added).
12 The Court costs are not a significant portion of Plaintiff’s monthly income. Although
13 Plaintiff has elected to pay a substantial portion of his income toward a monthly mortgage
14 payment, given Plaintiff’s level of income, it appears he is financially able to pay the Court
15 costs.
16 Given these facts, the Court concludes that Plaintiff is able to pay the requisite fees
17 and costs and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234.
18 Accordingly, the Court DENIES Plaintiff’s Motion to Proceed IFP.
19 B. Screening Pursuant to 28 U.S.C. § 1915(e)(2)
20 Even if Plaintiff paid the filing fee or had sufficiently demonstrated his indigence,
21 his Complaint would still be dismissed.
22 Plaintiff seeks to bring his claim pursuant to 18 U.S.C. § 242. Compl. at 2. He
23 requests the Court “immediate[ly] assign[ ] a Federal Prosecuting Attorney from the Office
24 of the U.S. Attorney to thoroughly examine the State of OHIO’s Official Election Division
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3 In addition to the $350.00 statutory fee, civil litigants must pay an additional
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administrative fee of $52.00. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of
27 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52.00
administrative fee does not apply to persons granted leave to proceed in forma pauperis.
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1 and Website for any and all possible violations of altering of the Constitution of these
2 United States”; “order the Elected and Appointed Officers of the State of OHIO to
3 immediately and without haste restore the Law of Article 1 Section 2 Paragraph 2 of the
4 Constitution of the United States”; and “extend Witness Protection to the Plaintiff and his
5 family due to the nature of the High Political and State Offices held by the Defendants.”
6 Id. at 3–4.
7 As an initial matter, Plaintiff seeks to assert his claim pursuant to a statute in the
8 United States Criminal Code, 18 U.S.C. § 242. However, this statute does not provide a
9 private cause of action. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
10 Therefore, Plaintiff cannot bring a civil suit on the basis of this statute, and he fails to state
11 a claim upon which relief can be granted under this statute.4
12 Additionally, the Court finds that Plaintiff lacks standing to bring the asserted claim
13 because he has not alleged an injury in fact. In order to bring a case in federal court, a
14 plaintiff must demonstrate he or she has “standing.” U.S. Const. art. III; Clapper v.
15 Amnesty Intern. U.S.A., 568 U.S. 398, 408 (2013). “The plaintiff must have (1) suffered
16 an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and
17 (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,
18 578 U.S. 330, 338 (2016), as revised (May 24, 2016) (citing Lujan v. Defenders of Wildlife,
19 504 U.S. 555, 560-61 (1992)). “Standing focuses on whether a plaintiff has a ‘personal
20 stake’ in the action such that she will be an effective litigant to assert the legal challenge at
21 issue.” Townley v. Miller, 722 F.3d 1128, 1135 (9th Cir. 2013). The United States
22 Supreme Court has explained the concept of standing as follows:
To establish Article III standing, an injury must be concrete,
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particularized, and actual or imminent; fairly traceable to the
24 challenged action; and redressable by a favorable ruling.
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4 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must be
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dismissed when a plaintiff’s allegations fail to set forth a set of facts which, if true, would
27 entitle the complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible
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1 Ait lctahnonuogth b iem smtrientcehnecde bise ycoonncde idtse dpluyr pao ssoem, wewhihcaht iesl atost eicn scuornec tehpatt,
2 the alleged injury is not too speculative for Article III purposes—
that the injury is certainly impending. Thus, we have repeatedly
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reiterated that ‘threatened injury must be certainly impending to
4 constitute injury in fact, and that [a]llegations of possible future
injury’ are not sufficient.
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6 Clapper, 568 U.S. at 409 (internal citations and quotations omitted).
7 It does appear from the Complaint that Plaintiff has a personal stake in this action.
8 See Townley, 722 F.3d at 1135. Plaintiff contends that he was looking at the Ohio Secretary
9 of State website “to become an ‘Official Ballot Candidate for the Office of U.S.
10 Representative.’” Compl. at 2. Further, Plaintiff avers in his IFP Motion that he is a
11 resident of Santee, California. See Mot. at 5. Therefore, it appears Plaintiff is not currently
12 an inhabitant of the state where he is attempting to run for a congressional seat. However,
13 Plaintiff does not adequately allege injury in fact. He does not allege that the Ohio
14 Secretary of State prevented him from filing his notice of candidacy or refused his
15 application based on Plaintiff’s residency in California. As a result, Plaintiff has not
16 pleaded a “concrete, particularized, and actual or imminent” injury because he has not
17 alleged that he was denied an opportunity to run for a U.S. House of Representatives seat
18 in Ohio based on the language at issue on the Ohio Secretary of State website. See Clapper,
19 568 U.S. at 409. Accordingly, Plaintiff’s Complaint must be dismissed for the additional
20 reason that he lacks standing to maintain the present action.
21 V. CONCLUSION
22 Accordingly, IT IS HEREBY ORDERED that:
23 1. Plaintiff’s Motion to Proceed IFP is DENIED;
24 2. Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE; and
25 3. Plaintiff is GRANTED thirty (30) calendar days from the date on which this
26 Order is electronically docketed, or in other words by, Wednesday, April 30, 2022, in
27 which to reopen his case by both (1) paying the entire $402.00 statutory and administrative
28 filing fee and (2) filing an amended complaint.
1 Any amended filing must be complete in itself, without reference to Plaintiffs
4 |Joriginal Complaint. Any claim not re-alleged in Plaintiff's amended complaint will be
3 considered waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co.,
4 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
5 || original.”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that
6 ||Claims dismissed with leave to amend which are not re-alleged in an amended pleading
7 ||may be “considered waived if not repled”). If Plaintiff fails to pay the $402.00 filing fee
g full, this action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a),
g without further Order of the Court.
10 IT IS SO ORDERED. et
11 || DATED: March 22, 2022
12 HON. LINDA LOPEZ
3 United States District Judge
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