Opinion
CASE NO. 14CV2904 BEN (NLS)
04-30-2015
VICTOR OGUNNIYI, Plaintiff, v. SOUTHWEST REGIONAL MAINTENANCE CENTER, et al., Defendants.
ORDER:
(1) GRANTING MOTION TO PROCEED IFP (2) SUA SPONTE DISMISSING ACTION
(3) DENYING MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff Victor Ogunniyi, proceeding pro se, has filed a complaint for civil rights violations based on allegations Defendant Southwest Regional Maintenance Center ("SWRMC"), its staff, and numerous employees of various government entities have failed to honor his company's contract. (Docket No. 1.) Plaintiff has not paid the civil filing fee required to commence this action, but has filed a motion to proceed in forma pauperis ("IFP"). (Docket No. 2.) Plaintiff also filed a motion for appointment of counsel. (Docket No. 3.) For the reasons set forth below, the Court GRANTS the motion to proceed IFP, sua sponte screens and DISMISSES the Complaint for failing to state a claim, and DENIES as moot the motion for appointment of counsel.
Plaintiff asserts claims against thirteen different defendants. Plaintiff appears to have named anyone he has contacted or attempted to contact concerning his companies' alleged contract and its implementation.
DISCUSSION
I. Motion to Proceed IFP
All parties instituting any civil action in a district court, except an application for writ of habeas corpus, must pay a filing fee. 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). Under 28 U.S.C. § 1915(a)(1),
any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.
The information provided in Plaintiff's affidavit reflects that he is unable to pay the fee to pursue this action. Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) is GRANTED. II. Sua Sponte Screening
An IFP complaint is subject to mandatory screening. Pursuant to 28 U.S.C. § 1915(e)(2)(B), notwithstanding any filing fee, the Court must dismiss any complaint if at any time the Court determines that it is "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." The sua sponte screening is mandatory. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.").
Plaintiff attempts to asserts claims under 42 U.S.C. § 1983 for constitutional violations, however, the allegations of his Complaint do not give rise to any decipherable constitutional violations as required to state a § 1983 claim. "To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). Additionally, Plaintiff seems to assert racial discrimination, but there are no facts alleged that even suggest or provide any basis for violations based on racial discrimination.
Plaintiff alleges that his company, Commissioning Solutions Global, LLC has a contract pursuant to a small business set aside that Defendant SWRMC and its staff have failed to implement. His claims against other defendants are based on those defendants' failure to order or otherwise compel SWRMC staff to implement the contract. Plaintiff claims that Commissioning Solutions Global, LLC has a $100,420,255 contract to service Navy ships, but it has not received the work anticipated. Plaintiff generally asserts that the contract has been impaired or breached because work is being directed to larger shipyards. Plaintiff seeks damages of $100,420,255 and an injunction prohibiting defendants from mismanaging the contract.
It is not at all clear from the Complaint what, if any, terms of Commissioning Solutions Global, LLC's contract have been breached or, more importantly, how those breaches constitute violations of Plaintiff's constitutional rights. Plaintiff's conclusory statements of constitutional violations are not sufficient. See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (finding "[v]ague and conclusory allegations of . . . civil rights violations are not sufficient to withstand a motion to dismiss"). Accordingly, the Complaint is DISMISSED because it fails to allege sufficient factual matter, accepted as true, to state a plausible claim to relief. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) ("The language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).").
The Court notes, as referenced in Plaintiff's Complaint, that Plaintiff, on behalf of Commissioning Solutions Global LLC, brought a petition before the Armed Services Board of Contract Appeals to direct the contracting officer to issue a decision on a claim for breach of contract pursuant to 41 U.S.C. § 7103(f)(4). The Board dismissed it for lack of jurisdiction because Plaintiff failed to submit a claim to the contracting officer for the alleged breach of contract prior to seeking relief from the Board. Plaintiff's subsequent appeal of that decision to the U.S. Court of Appeals for the Federal Circuit was dismissed. --------
Plaintiff is granted leave to file a First Amended Complaint ("FAC"). If Plaintiff files a FAC, it must be complete in itself without reference to Plaintiff's initial Complaint. See S.D. Cal. Civ. L.R. 15.1.
CONCLUSION
Plaintiff's motion to proceed IFP is GRANTED. Plaintiff's Complaint is sua sponte DISMISSED. If Plaintiff wishes to file a FAC, it must be filed no later than June 26, 2015. In light of the dismissal, Plaintiff's motion to appoint counsel is DENIED as moot.
IT IS SO ORDERED. DATED: April 30, 2015
/s/_________
Hon. Roger T. Benitez
United States District Judge