1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 NEWMAN BRIDGETT JR. Case No.: 23-CV-1767-CAB-BLM

11 Plaintiff,

ORDER GRANTING APPLICATION

12 v. FOR LEAVE TO PROCEED IN

FORMA PAUPERIS AND

13 COUNTY OF SAN DIEGO et al.,

DISMISSING CASE

14 Defendants. [Doc. No. 2] 15 16 17 18 19 This matter is before the Court on Plaintiff’s application for leave to proceed in 20 forma pauperis (“IFP”). “An affidavit in support of an IFP application is sufficient where 21 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 22 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking IFP 23 status must allege poverty with some particularity, definiteness and certainty.” Id. (internal 24 quotation marks omitted). Here, Plaintiff’s application states that he was recently released 25 from prison and that he has no income or assets. Because Plaintiff is unable to pay the filing 26 fee and “still afford the necessities of life,” the IFP application is granted. 27 However, a complaint filed by any person seeking to proceed IFP pursuant to 28 28 U.S.C. § 1915(a) is subject to mandatory and sua sponte review and dismissal should the 1 Court determine, inter alia, it is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 3 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 4 prisoners.”). Congress enacted this safeguard because “a litigant whose filing fees and 5 court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive 6 to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 7 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)); Lopez v. 8 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, 9 but requires a district court to dismiss an in forma pauperis complaint that fails to state a 10 claim.”). 11 Here, the complaint seeks damages under 42 U.S.C. § 1983 for violations of 12 Plaintiff’s civil rights stemming from a prison sentence he received in state court. 13 However, “to recover damages for allegedly unconstitutional conviction or imprisonment, 14 or for other harm caused by actions whose unlawfulness would render a conviction or 15 sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been 16 reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 17 authorized to make such determination, or called into question by a federal court's issuance 18 of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). As a result, 19 “a § 1983 cause of action for damages attributable to an unconstitutional conviction or 20 sentence does not accrue until the conviction or sentence has been invalidated.” Id. at 489- 21 90. Plaintiff’s complaint does not allege that his sentence was reversed, expunged, 22 invalidated, or called into question by a federal court’s issuance of a write of habeas corpus. 23 Rather, the complaint merely alleges that Plaintiff served the entirety of a sentence that he 24 now asserts was unconstitutional. Accordingly, under Heck, Plaintiff may not assert a § 25 1983 claim seeking damages arising from his allegedly unconstitutional sentence. 26 In light of the foregoing, it is hereby ORDERED that the application to proceed in 27 forma pauperis is GRANTED [Doc. No. 2], and the complaint is DISMISSED pursuant 28 to 28 U.S.C. § 1915(e)(2)(B). Further, this Court certifies that any IFP appeal from this 1 || Order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). The Clerk 2 Court shall CLOSE this case. 3 It is SO ORDERED. 4 ||Dated: October 10, 2023 <6 5 Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28