Case 2:05-cv-01588-FCD-JFM Document 4 Filed 09/20/05 Page 1 of 3
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`RICHARD ROUSAY,
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`Plaintiff,
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`No. CIV S-05-1588 FCD JFM PS
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`vs.
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`VICE PRESIDENT CHENEY,
`PRESIDENT BUSH, et al.,
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`ORDER AND
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`Defendants.
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`FINDINGS & RECOMMENDATIONS
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` /
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`Plaintiff is proceeding in this action pro se. Plaintiff seeks relief pursuant to and
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`has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This
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`proceeding was referred to this court by Local Rule 72-302(c)(21).
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`Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is
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`unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in
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`forma pauperis will be granted. 28 U.S.C. § 1915(a).
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`The federal in forma pauperis statute authorizes federal courts to dismiss a case if
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`the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be
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`granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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`§ 1915(e)(2).
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`Case 2:05-cv-01588-FCD-JFM Document 4 Filed 09/20/05 Page 2 of 3
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`A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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`Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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`(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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`indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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`490 U.S. at 327.
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`A complaint, or portion thereof, should only be dismissed for failure to state a
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`claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set
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`of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &
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`Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer
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`v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a
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`complaint under this standard, the court must accept as true the allegations of the complaint in
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`question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
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`pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,
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`Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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`Plaintiff appears to seek deferment from U.S. military service for his five children,
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`four of which he admits are married, and one of which is single. (Complaint at 2.) Military
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`service in the United States is not required. Therefore, there is no relief which can be granted in
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`an action for deferment. Moreover, as it appears most if not all of plaintiff’s children are adults,
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`the question of military service is one to be decided by plaintiff’s children. Plaintiff does not
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`have standing to pursue an action of this sort on their behalf.
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`In accordance with the above, IT IS HEREBY ORDERED that plaintiff's request
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`to proceed in forma pauperis is granted; and
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`IT IS HEREBY RECOMMENDED that plaintiff’s complaint be dismissed.
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`These findings and recommendations are submitted to the United States District
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`Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty
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`days after being served with these findings and recommendations, any party may file written
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`Case 2:05-cv-01588-FCD-JFM Document 4 Filed 09/20/05 Page 3 of 3
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`objections with the court and serve a copy on all parties. Such a document should be captioned
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`“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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`shall be served and filed within ten days after service of the objections. The parties are advised
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`that failure to file objections within the specified time may waive the right to appeal the District
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`Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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`DATED: September 20, 2005.
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