“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) 9 are not limited to prisoners.”
How later courts described this case
- “[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) 9 are not limited to prisoners.”
- “[W]here [an] 4 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 5 fee[s] [a]re paid.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 MELCHOR KARL T. LIMPIN, Case No.: 25-cv-2162-RSH-MSB
12 Plaintiff,
ORDER DENYING MOTION TO
13 v.
PROCEED IN FORMA PAUPERIS
14 United States of America, U.S. Attorney’s AND DISMISSING COMPLAINT
Office for the Southern District of WITHOUT LEAVE TO AMEND
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California, and U.S. Attorney General
16 Civil Division, [ECF No. 2]
17 Defendants.
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19 On August 21, 2025, plaintiff Melchor Karl T. Limpin, proceeding pro se, filed this
20 civil action against the United States. ECF No. 1. Plaintiff also filed a motion to proceed
21 in forma pauperis (“IFP”) pursuant to 28 U.S.C. §1915(a). ECF No. 2.
22 I. MOTION TO PROCEED IFP
23 All parties instituting any civil action, suit or proceeding in a district court of the
24 United States, except an application for writ of habeas corpus, must pay a filing fee of
25 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire
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1 In civil actions except for applications for a writ of habeas corpus, civil litigants
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1 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant
2 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
3 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an]
4 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the
5 fee[s] [a]re paid.”). Under 28 U.S.C. § 1915(a), the court may authorize the commencement
6 of any suit without payment of fees if the plaintiff submits an affidavit, including a
7 statement of all his or her assets, showing that he or she is unable to pay filing fees or costs.
8 “An affidavit in support of an IFP application is sufficient where it alleges that the affiant
9 cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees,
10 787 F. 3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking IFP status must allege poverty
11 with some particularity, definiteness and certainty.” Id. (internal quotation marks omitted).
12 The granting or denial of leave to proceed IFP in civil cases is within the sound discretion
13 of the district court. Venerable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations
14 omitted).
15 Plaintiff’s IFP motion is not accompanied by a supporting affidavit as required. The
16 motion recites that an affidavit is attached, but Plaintiff may have inadvertently failed to
17 submit the affidavit. Ordinarily, the Court would deny the IFP motion without prejudice to
18 Plaintiff refiling the motion and attaching a signed and completed “Application to Proceed
19 in District Court Without Preparing Fees or Costs (Long Form),” available on the Court’s
20 website. As discussed below, however, the Complaint here is subject to dismissal without
21 leave to amend.
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27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
Schedule, § 14). However, the $55 administrative fee does not apply to persons granted
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1 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
2 A. Legal Standard
3 When reviewing an IFP application, the Court must also review the underlying
4 complaint to determine whether it may proceed. A complaint filed by any person seeking
5 to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua sponte review and
6 dismissal should the Court determine, inter alia, that it is frivolous, malicious, or fails to
7 state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); Calhoun v.
8 Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B)
9 are not limited to prisoners.”).
10 “The standard for determining whether a plaintiff has failed to state a claim upon
11 which relief can be granted under [28 U.S.C.] § 1915(e)(2)(B)(ii) is the same as the Federal
12 Rule of Civil Procedure [(“Rule”)] 12(b)(6) standard for failure to state a claim.” Watison
13 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Although detailed factual allegations are
14 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
16 “Determining whether a complaint states a plausible claim for relief [is] . . . a context-
17 specific task that requires the reviewing court to draw on its judicial experience and
18 common sense.” Id. at 679. The “mere possibility of misconduct” or “unadorned, the
19 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
20 standard. Id. at 678–79. Under Rule 12(b)(6), a complaint must “contain sufficient factual
21 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678.
22 (citation omitted). Finally, while the “court[ ] must construe pro se pleadings liberally,”
23 Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), it may not “supply essential elements
24 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673
25 F.2d 266, 268 (9th Cir. 1982).
26 B. Plaintiff’s Prior Qui Tam Action
27 On March 3, 2023, Plaintiff filed a qui tam action in this Court pursuant to the False
28 Claims Act, 31 U.S.C. § 3729 et seq., United States ex rel. Limpin v. Newsom et al., No.
1 23-cv-399 DMS AGS (S.D. Cal.), Dkt. No. 1 (Complaint). On August 23, 2023, the United
2 States filed notice that it was declining to intervene in the lawsuit. Dkt. No. 16. In that
3 filing, the United States noted that the False Claims Act generally permits a relator to
4 maintain an action in the name of the United States following declination, but that here the
5 plaintiff was proceeding pro se; and courts have not permitted pro se relators to prosecute
6 qui tam actions under the False Claims Act. Id.
7 On October 24, 2024, the Court dismissed Plaintiff’s qui tam complaint. The Court
8 explained:
9 The FCA permits private citizens to bring qui tam actions with certain
limitations. The United States is the real party in interest in such
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actions. United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d
11 715, 720 (9th Cir. 1994). The United States declined to intervene in this
action. (ECF No. 16 at 1.) Because the Court has declined Mr. Limpin’s
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request for appointment of counsel, Mr. Limpin remains a pro se
13 litigant. The government argues that a pro se litigant may not prosecute
a qui tam action against the United States. (Government’s Opposition
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to Defendant’s Motion (“Govt. Opp’n”), ECF No. 24, at 5.) This Court
15 agrees. Non-attorneys may not represent the United States for “qui tam
realtors are not prosecuting only their ‘own case’ but also representing
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the United States and binding it to any adverse judgment the realtors
17 may obtain.” Id. (quoting Stoner v. Santa Clara Cnty. Office of Educ.,
502 F.3d 1116, 1127–28 (9th Cir. 2007)). Plaintiff, appearing pro se,
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cannot prosecute this qui tam action against the United States.
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Dkt. No. 28.
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The United States thereafter filed a motion to dismiss the action. Dkt. No. 24.
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Plaintiff filed an opposing brief. Dkt. No. 26. The Court therefore dismissed the action.
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Judgment was entered on October 25, 2024. Dkt. No. 29. Plaintiff thereafter moved for
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reconsideration, which the Court denied. Dkt. Nos. 31, 35.
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Plaintiff appealed. Dkt. No. 36. On January 23, 2025, the U.S. Court of Appeals
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denied Plaintiff’s motion to proceed in forma pauperis and dismissed his appeal as
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frivolous. Dkt. No. 41.
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1 C. The Complaint
2 The Complaint in the instant action alleges that the United States acted wrongfully
3 in Plaintiff’s earlier qui tam action by declining to intervene, by not investigating, and by
4 advising the Court that under applicable law Plaintiff was unable to bring a qui tam action
5 pro se. ECF No. 1 ¶¶ 10, 15. Plaintiff alleges that the United States thereby deprived him
6 of his due process rights by preventing him from obtaining the reward he would have
7 received by prevailing at trial on behalf of the United States. Id. ¶ 10. Plaintiff also alleges
8 that the United States’ acts amounted to abuse of process. Id. ¶ 17.
9 To state a procedural due process claim, plaintiffs must allege facts showing: (1) a
10 deprivation of a constitutionally protected liberty or property interest, and (2) a denial of
11 adequate procedural protections. Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003).
12 Plaintiff has no constitutionally protected liberty or property interest in whether the United
13 States chooses to intervene in a qui tam action; that decision is expressly reserved by statute
14 for the United States. See 31 U.S.C. § 3730(c)(3) (“If the Government elects not to proceed
15 with the action, the person who initiated the action shall have the right to conduct the
16 action”); Bruzzone v. U.S. Attorney of N. Cal. Dist., No. 22-cv-6412-HSG, 2023 WL
17 5239639, at *3 (Aug. 15 2023 N.D. Cal.) (“[T]he False Claims Act does not require the
18 Government to intervene in a qui tam action: it specifically states that the Government may
19 elect not to proceed with an action.”). Even if Plaintiff were to have some constitutionally
20 protected interest in the qui tam lawsuit itself, he unquestionably received adequate
21 procedure: this Court’s adjudication that the qui tam case was subject to dismissal. Indeed,
22 in unsuccessfully opposing dismissal, Plaintiff made arguments then that are similar to the
23 allegations he makes in his Complaint here: that the United States failed to fully investigate
24 his qui tam complaint and deprived him of due process. Case No. 23-cf-399, Dkt. No. 26
25 at 1-2, 9-10. The Court dismissed the case. As the order reflects, the dismissal was not
26 based on the say-so of the United States, but rather on applicable law. Dkt. No. 28 at 4-5.
27 Plaintiff received additional process by moving to reconsider in the district court, and by
28 appealing, both of which requests were also rejected by the respective courts. Plaintiff fails
1 to state a due process claim.
2 “The tort of abuse of process arises when one uses the court’s process for a purpose
3 other than that for which the process was designed.” Brown v. Kennard, 94 Cal. App. 4th
4 40, 44 (Ct. App. 2001). “To succeed in an action for abuse of process, a litigant must
5 establish two elements: that the defendant (1) contemplated an ulterior motive in using the
6 process; and (2) committed a willful act in the use of the process not proper in the regular
7 conduct of the proceedings.” Id. “A showing of malice, whether express or implied, is
8 required.” Slaughter v. Legal Process & Courier Serv., 162 Cal. App. 3d 1236, 1247 (Ct.
9 App. 1984)). “The gist of the tort is the misuse of the power of the court: It is an act done
10 under the authority of the court for the purpose of perpetrating an injustice, i.e., a perversion
11 of the judicial process to the accomplishment of an improper purpose.” Younger v.
12 Solomon, 38 Cal. App. 3d 289, 297 (Ct. App. 1974) (emphasis in original). Generally, such
13 an action “lies only where the process is used to obtain an unjustifiable collateral
14 advantage.” Id. Here, there was no misuse of the power of the court, either in the United
15 States exercising its statutory prerogative by declining to intervene, or in the United States
16 citing legal authority to the Court. Plaintiff fails to state a claim for abuse of process.
17 The Complaint here not only fails to state a claim, but indeed is frivolous. As the
18 Court previously explained to him, he was not and is not entitled to pursue a qui tam action
19 pro se. This result was affirmed by the U.S. Court of Appeals. The instant lawsuit is
20 effectively an attempt to resuscitate the same defective claim, but to recover against the
21 United States instead of the defendants whom Plaintiff initially sued.
22 “A district court should not dismiss a pro se complaint without leave to amend unless
23 ‘it is absolutely clear that the deficiencies of the complaint could not be cured by
24 amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v.
25 Rockwood, 846 F.2d 1202, 1204 (9th Cir.1988)). It is clear to the Court that no amendment
26 to the Complaint would cure the deficiencies identified herein. The Court denies leave to
27 amend.
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1 CONCLUSION
2 For the foregoing reasons, Plaintiff's motion to proceed IFP [ECF No. 2] is
3 || DENIED. Upon determination that the Complaint fails to state a claim and is frivolous,
4 || pursuant to 28 U.S.C. § 1915(e)(2)(B) the Court DISMISSES the Complaint without leave
5 ||to amend. The Clerk is directed to close the case.
6 IT IS SO ORDERED.
7 Dated: August 27, 2025 Kehw z How
g Hon. Robert S. Hute
United States District Judge
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