EVERETT v. Univ. of SAN FRANCISCO, No. C 11-01519 CW

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtCLAUDIA WILKEN
Decision Date12 April 2011
PartiesDANIEL EVERETT, Plaintiff, v. UNIVERSITY OF SAN FRANCISCO, Defendant.
Docket NumberNo. C 11-01519 CW

DANIEL EVERETT, Plaintiff,
v.
UNIVERSITY OF SAN FRANCISCO, Defendant.

No. C 11-01519 CW

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: April 12, 2011


ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT

Plaintiff Daniel Everett applies for leave to proceed in forma pauperis (IFP). Having considered all of the papers filed by Plaintiff, the Court grants the application to proceed IFP and dismisses his complaint.

A court may authorize a plaintiff to prosecute an action in federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or provide such security. See 28 U.S.C. § 1915(a). Plaintiff has submitted the required documentation, and it is evident from his application that his assets and income are insufficient to enable him to prosecute the action. Accordingly, the application to proceed without the payment of the filing fee is granted.

The Court's grant of Plaintiff's application to proceed IFP, however, does not mean that he may continue to prosecute his complaint. A court is under a continuing duty to dismiss a case filed without the payment of the filing fee whenever it determines that the action "(i) is frivolous or malicious; (ii) fails to state

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a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Because a dismissal pursuant to § 1915(e)(2)(B) is not a dismissal on the merits, but rather an exercise of the court's discretion under the IFP statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. Denton v. Hernandez, 504 U.S. 25, 32 (1992).

Plaintiff alleges that he had a contract with Defendant University of San Francisco (USF) that permitted him to broadcast his show on the school's radio station while he is enrolled in the school's Master of Public Affairs program. He pleads that USF breached the contract by entering into an agreement with Classical Public Radio Network, LLC (CPRN), under which CPRN may broadcast during his time slot. He appears to assert that the Court has federal question jurisdiction based on subpart D of part 73 of title 47 of the Code of Federal Regulations (CFR).1

To determine whether federal question jurisdiction exists under § 1331, "the well-pleaded complaint rule 'provides that federal jurisdiction exists only when a...

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