Bobo v. Bakersfield Rescue Mission

Filing 4

FINDINGS and RECOMMENDATIONS to Deny the Request to Proceed In Forma Pauperis and Dismiss the Complaint, signed by Magistrate Judge Jennifer L. Thurston on 7/22/2016. Referred to District Judge Dale A. Drozd. Objections to F&R due within 14 days. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

CHARLES LEWIS BOBO,
Plaintiff,

12
v.

13
14

BAKERSFIELD RESCUE MISSION,
Defendant.

15

)
)
)
)
)
)
)
)
)
)

Case No.: 1:16-cv-01043 DAD JLT
FINDINGS AND RECOMMENDATIONS TO
DENY THE REQUEST TO PROCEED IN FORMA
PAUPERIS AND DISMISS THE COMPLAINT
(Docs. 1, 2)

16
In his earlier action, filed on March 3, 2016 (Bobo v. Bakersfield Rescue Mission, case number

17
18

1:16-cv-00292 LJO JLT) against this same defendant, the plaintiff alleged that while staying at the

19

Bakersfield Rescue Mission, he was subjected to the Mission’s no-drug-use policies, that there was no

20

air conditioning for a period of time, that he caught a cold while staying at the Mission and the Mission

21

staff complained he ate too much food. (Bobo v. Bakersfield Rescue Mission, case number 1:16-cv-

22

00292 LJO JLT Docs. 3, 6) The Court denied his request to proceed in forma pauperis and dismissed

23

the action because the Court lacked subject matter jurisdiction.
Undeterred, the plaintiff has again sought to sue the Bakersfield Rescue Mission by raising

24
25

similar claims and seeks to proceed in forma pauperis. (Docs. 1-2) Because Plaintiff does not present

26

any federal claims in this action, the Court recommends the motion to proceed in forma pauperis be

27

DENIED and the matter be DISMISSED without prejudice for lack of subject matter jurisdiction.

28

///
1

1

I.

2

Motion to Proceed In Forma Pauperis
As a general rule, all parties instituting any civil action, suit or proceeding in a United States

3

District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the

4

commencement of an action “without prepayment of fees and costs of security therefor, by a person

5

who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” 28

6

U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if

7

leave to proceed in forma pauperis (“IFP”) is granted by the Court. See Rodriguez v. Cook, 169 F.3d

8

1178, 1177 (9th Cir. 1999).

9

If a plaintiff seeks to proceed in forma pauperis, the Court is required to review the complaint,

10

and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or

11

the action or appeal is “frivolous, malicious or fails to state a claim on which relief may be granted; or

12

… seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 1915(e)(2).

13

A claim is frivolous “when the facts alleged arise to the level of the irrational or the wholly incredible,

14

whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez,

15

504 U.S. 25, 32-33 (1992); see also Neitzke v. Williams, 490 U.S. 319, 325, 328 (1989) (finding claims

16

may be dismissed as “frivolous” where the allegations are “fanciful” or “describe[e] fantastic or

17

delusional scenarios”).
The Court recommends Plaintiff’s application to proceed in forma pauperis be DENIED

18
19

because, as discussed below, the allegations of the complaint fail to allege a claim upon which relief

20

may be granted.

21

II.

22

Background
While staying at the Mission at some time in the past, the air conditioner did not work for a

23

period of time. (Doc. 1 at 1) Later, it started working when it was too cold for it and the plaintiff

24

caught a cold. Id. Despite this, the Mission required residents to bathe or they would not be permitted

25

to stay; the policy was “no shower, no bed.” Id. Plaintiff complains that while at the mission, he was

26

informed by Mission staff that he ate too much. Id. Finally, he complaints about the Mission’s

27

policies that the residents cannot “drink or do drugs while here” and if a resident is found to be under

28

the influence, the resident is banned from the facility for five days. Id. As a result, the Mission doesn’t
2

1

“want me staying in the shelter.” Id.

2

II.

3

Jurisdiction
The district court is a court of limited jurisdiction, and is empowered only to hear disputes

4

“authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

5

377 (1994); Exxon Mobil Corp v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). The federal courts

6

are “presumed to lack jurisdiction in a particular case, unless the contrary affirmatively appears.” A-Z

7

Int'l. v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003).

8

A federal court “ha[s] an independent obligation to address sua sponte whether [it] has subject-

9

matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the obligation of

10

the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v. Atlas Global Group,

11

L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court cannot decide the merits of a

12

case or order any relief. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d

13

1376, 1380 (9th Cir. 1988). The burden of establishing jurisdiction rests upon plaintiff as the party

14

asserting jurisdiction. Kokkonen, 511 U.S. at 377; see also Hagans v. Lavine, 415 U.S. 528, 543 (1974)

15

(acknowledging that a claim may be dismissed for lack of jurisdiction if it is “so insubstantial,

16

implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy within

17

the jurisdiction of the District Court”).

18

III.

19

Discussion and Analysis
Though Plaintiff complains about conditions at the Bakersfield Rescue Mission and,

20

apparently, dislikes the policies implemented there—daily bathing, abstinence from drugs and alcohol,

21

limited food, etc.—this is insufficient to demonstrate that this Court has authority to act. Indeed,

22

Plaintiff fails to identify any claims that would invoke this Court’s jurisdiction.

23

To state a claim for a violation of civil rights, Plaintiff must identify an action that violates the

24

Constitution of the United States or another federal law, and taken by a person acting under color of

25

state law.2 Here, the Bakersfield Rescue Mission and its employees do not act under color of

26

authority. Rather, in general, individuals—such as those working at homeless shelters or rescue

27
28

2

There can be no claim that this action arises under the Court’s diversity jurisdiction since the Bakersfield Rescue Mission
is a citizen of California as is the plaintiff who has been staying at the Mission in Bakersfield, California.

3

1

missions—are private parties and do not act under color of authority with actions attributable to the

2

government. See Price v. Hawaii, 939 F.2d 702, 707-09 (9th Cir. 1991). Thus, the Court lacks

3

jurisdiction over this matter.

4

IV.

Findings and Recommendations

5

Because the Court lacks jurisdiction over the matter, the Court RECOMMENDS:

6

1.

The motion to proceed in forma pauperis (Doc. 2) be DENIED;

7

2.

The action be DISMISSED without prejudice for lack of subject matter jurisdiction; and

8

4.

The Clerk of Court be directed to close this action.

9

These findings and recommendations are submitted to the United States District Judge assigned

10

to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of

11

Practice for the United States District Court, Eastern District of California. Within 14 days after

12

being served with these findings and recommendations, Plaintiff may file written objections with the

13

Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

14

Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

15

waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

16
17
18
19

IT IS SO ORDERED.
Dated:

July 22, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
4