noting that 7 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading g ||may be “considered waived if not repled”
How later courts described this case
- noting that 7 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading g ||may be “considered waived if not repled”
- “[A]n amended pleading supersedes the 6 || 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.: 21cv2076-LL-KSC
Plaintiff,
11 ORDER:
12 v. (1) DENYING MOTION TO
PROCEED IN FORMA
13 THE STATE OF COLORADO, PAUPERIS
14 Defendant. (2) DISMISSING COMPLAINT
15 [ECF Nos. 1, 2]
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I. INTRODUCTION
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Presently before the Court is the Motion to Proceed In Forma Pauperis (“IFP”) of
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Plaintiff David John Thistle (“Plaintiff”). ECF No. 2 (“Mot.”). Plaintiff, proceeding pro
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se,1 alleges that the Colorado Secretary of State’s website contains unconstitutional
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limitations on candidate eligibility to run for the United States House of Representatives.
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See generally ECF No. 1 (“Compl.”). Having considered carefully Plaintiff’s Complaint,
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IFP Motion, and the applicable law, the Court (1) DENIES Plaintiff’s Motion to Proceed
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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
Plaintiff alleges that “while researching The COLORADO Secretary of State’s
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Official Website to become an ‘Official Ballot Candidate for the Office of U.S.
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Representative,’” he discovered that the website unconstitutionally sought to “limit and
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prevent otherwise fully qualified Ballot Candidates” from running for office. Compl. at 2–
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3.2 Plaintiff’s does not allege the specific language on the website he takes issue with, but
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he appears to contend that the website imposes limitations on candidates more stringent
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than Article 1 of the U.S. Constitution, which only requires that a Representative “when
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9 elected, 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 find 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. 787
20 F.3d at 1235. Taking into account the plaintiff’s rent and debt payments, the filing fee
21 would have required the entirety of two months’ worth of her remaining funds, meaning
22 that the plaintiff “would have to forgo eating during those sixty days, to save up to pay the
23 filing fee.” Id. Under those circumstances, the Ninth Circuit determined that paying the
24 filing fee would constitute a significant financial hardship to the plaintiff. Id. Accordingly,
25 the court reversed the magistrate judge’s ruling denying the plaintiff IFP status. Id. at 1236.
26 Here, Plaintiff’s IFP motion indicates that his monthly income is $4,620.00. Mot.
27 at 2. Plaintiff indicates that his only asset is a 2016 Kia Soul, and he has $5.23 in a checking
28 account and $20.00 in a savings account. Id. at 2-3. His monthly expenses average
1 $4,780.00 and consist of the following: mortgage ($2,980.00), utilities ($1,000.00), laundry
2 and dry cleaning ($100.00), home insurance ($200.00), and car payment ($500.00). Id. at
3 4. Plaintiff claims that “my retirement pay is not enough to live on in C[alifornia].” Id. at
4 5. Before factoring in expenses, the $402.00 filing fee3 constitutes less than 10% of
5 Plaintiff’s monthly income.
6 There are inconsistencies in Plaintiff’s IFP application. For example, Plaintiff avers
7 his average monthly expenses exceed his monthly income by $160.00; however, Plaintiff
8 does not explain how he pays the difference every month when he only has $25.00 in his
9 bank accounts and no listed assets other than his vehicle. Section 1915(a)(1) requires that
10 Plaintiff attest to “all assets [he] possesses.” 28 U.S.C. § 1915(a)(1) (emphasis added).
11 The Court costs are not a significant portion of Plaintiff’s monthly income. Although
12 Plaintiff has elected to pay a substantial portion of his income toward a monthly mortgage
13 payment, given Plaintiff’s level of income, it appears he is financially able to pay the Court
14 costs.
15 Given these facts, the Court concludes that Plaintiff is able to pay the requisite fees
16 and costs and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234.
17 Accordingly, the Court DENIES Plaintiff’s Motion to Proceed IFP.
18 B. Screening Pursuant to 28 U.S.C. § 1915(e)(2)
19 Even if Plaintiff paid the filing fee or had sufficiently demonstrated his indigence,
20 his Complaint would still be dismissed.
21 Plaintiff seeks to bring his claim pursuant to 18 U.S.C. § 242. Compl. at 2. He
22 requests that the Court, inter alia, (1) “immediate[ly] assign[ ] a Federal Prosecuting
23 Attorney from the Office of the U.S. Attorney to thoroughly examine the State of
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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 COLORADO’s Official Election Division and Website for any and all possible violations
2 of altering of the Constitution of these United States”; (2) “order the Elected and Appointed
3 Officers of the State of COLORADO to immediately and without haste restore the Law of
4 Article 1 Section 2 Paragraph 2 of the Constitution of the United States”; and (3) “extend
5 Witness Protection to the Plaintiff and his family due to the nature of the High Political
6 and State Offices held by the Defendants.” 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
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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 cAhlathlloeungghe dim amcitnioenn;c ea insd c ornecderdeesdsalyb lae sobmy ewa hafat veolarsatbicle c ornuclienpgt.,
2 it cannot be stretched beyond its purpose, which is to ensure that
the alleged injury is not too speculative for Article III purposes—
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that the injury is certainly impending. Thus, we have repeatedly
4 reiterated that “threatened injury must be certainly impending to
constitute injury in fact, and that [a]llegations of possible future
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injury” are not sufficient.
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Clapper, 568 U.S. at 409 (internal citations and quotations omitted).
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It does appear from the Complaint that Plaintiff has a personal stake in this action.
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See Townley, 722 F.3d at 1135. Plaintiff contends that he was looking at the Colorado
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Secretary of State website “to become an ‘Official Ballot Candidate for the Office of U.S.
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Representative.’” Compl. at 2. Further, Plaintiff avers in his IFP Motion that he is a
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resident of Santee, California. See Mot. at 5. Therefore, it appears Plaintiff is not currently
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an inhabitant of the state where he is attempting to run for a congressional seat. However,
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Plaintiff does not adequately allege injury in fact. He does not allege that the Colorado
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Secretary of State prevented him from filing his notice of candidacy or refused his
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application based on Plaintiff’s residency in California. Therefore, Plaintiff has not
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pleaded a “concrete, particularized, and actual or imminent” injury because he has not
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alleged that he was denied an opportunity to run for a U.S. House of Representatives seat
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in Colorado based on the language at issue on the Colorado Secretary of State website. See
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Clapper, 568 U.S. at 409. Accordingly, Plaintiff’s Complaint must be dismissed for the
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additional reason that he lacks standing to maintain the present action.
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V. CONCLUSION
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s Motion to Proceed IFP is DENIED;
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2. Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE; and
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3. Plaintiff is GRANTED thirty (30) calendar days from the date on which
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this Order is electronically docketed, or in other words by, Wednesday, April 30, 2022, in
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which to reopen his case by both (1) paying the entire $402.00 statutory and administrative
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1 || filing fee and (2) filing an amended complaint.
Any amended filing must be complete in itself, without reference to □□□□□□□□□□□
3 |/original Complaint. Any claim not re-alleged in Plaintiff's amended complaint will be
4 considered waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co.,
5 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
6 || Original.”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that
7 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading
g ||may be “considered waived if not repled”). If Plaintiff fails to pay the $402.00 filing fee
g |}in full, this action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a),
10 without further Order of the Court.
IT IS SO ORDERED. Pp
12 || DATED: March 22, 2022
13 HON. LINDA LOPEZ
14 United States District Judge
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