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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 FERNANDO “HORSEPAINTER” CASE NO. 19cv2500-LAB (KSC) 11 PALOMINO, 12 Plaintiff, ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Dkt. 13 vs. 3];

14 THE EAGLES BAND OF CALIFORNIA, ORDER DENYING MOTION TO 15 USA, APPOINT COUNSEL [Dkt. 2]; Defendant. 16 ORDER DISMISSING PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE. 17 18 19 20 On December 31, 2019, Plaintiff Fernando Palomino brought this suit against “the 21 Eagles Band of California USA” for copyright infringement. Pending before the Court is his 22 petition to proceed in forma pauperis (“IFP”). 23 Palomino’s IFP application states that his average monthly income over the previous 24 year was approximately $454. He is unemployed and has just $100 in his Chase checking 25 account. The Court finds Palomino is unable to pay the filing fee, so his motion to proceed 26 IFP is GRANTED. Dkt. 3. 27 When a plaintiff is permitted to proceed IFP, the Court is required to screen the 28 complaint, and dismiss it to the extent it is frivolous or malicious, fails to state a claim, or 1 || seeks monetary relief from an immune defendant. See

(e)(2)(B); Lopez v. 2 || Smith,

(9th Cir. 2000) (en banc). 3 Liberally construed, Palomino’s complaint alleges that he is the original performer of 4 || a song entitled “How Many More Miles to Your Heart.” Sometime in 1989, he provided a 5 || recording of this song to the rock band the Eagles (or to someone affiliated with the band). 6 || The Eagles then proceeded to infringe Palomino’s work by using it as a basis for two of their 7 || hit songs, “Matters of the Heart” and “Love Will Keep Us Alive.” 8 At this stage, Palomino has not stated a viable claim for copyright infringement. To 9 || prevail on a copyright infringement claim, a plaintiff must show that (1) he or she owns the 10 || copyright in the infringed work, and (2) the defendant copied protected elements of the 11 || copyrighted work. Williams v. Gaye,

(9th Cir. 2018). Chiefly because 12 || he has not provided the Court with any of the relevant recordings, Plaintiff has not plausibly 13 || demonstrated either of these elements. Without a copy of (or at least lyrics to) Palomino’s 14 || original song and the allegedly infringing Eagles songs, the Court is unable to determine 15 || whether it is plausible that the works are “substantially similar.”’ /d. As such, Palomino’s 16 || complaint is DISMISSED WITHOUT PREJUDICE. If he believes he can fix these 17 || deficiencies, perhaps by lodging with the Court the various recordings he references, he 18 || may file an amended complaint no later than March 3, 2020. For now, Palomino’s Motion 19 || to Appoint counsel is DENIED WITHOUT PREJUDICE. The Court will revisit that 20 || determination if his amended complaint states a plausible claim for copyright infringement. 21 IT IS SO ORDERED. 22 || Dated: January 2, 2020 (aud A (Buywy 23 HONORABLE LARRY ALAN BURNS oA Chief United States District Judge 25 26 27 || 1 The Court leaves the statute of limitations issues presented by this case for another day. Although copyright infringement uses a “separate accrual” rule—meaning that the statute of 28 || limitations runs separately from each violation—it is not clear from Palomino’s pleading when the infringing conduct occurred most recently.