Turner v. Barnes

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/24/14 RECOMMENDING that Plaintiffs 2 application to proceed in forma pauperis be denied. Plaintiff's 1 complaint be dismissed without leave to amend. This action be dismissed. Matter referred to Judge Kimberly J. Mueller. Within 14 days after being served with these findings and recommendations, plaintiff may file written objections with the court. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANIER P. TURNER,

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No. 2:14-cv-1496 KJM DAD PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

JENNIFER BARNES,

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Defendant.
Plaintiff Lanier Turner is proceeding in this action pro se. This matter was referred to the

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undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has

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requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C. §

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1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis

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status does not complete the inquiry required by the statute. “‘A district court may deny leave to

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proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that

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the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th

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Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See

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also Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court to

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examine any application for leave to proceed in forma pauperis to determine whether the

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proposed proceeding has merit and if it appears that the proceeding is without merit, the court is
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bound to deny a motion seeking leave to proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:
A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks.
FED. R. CIV. P. 8(a).

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Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a

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complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that

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state the elements of each claim plainly and succinctly. FED. R. CIV. P. 8(a)(2); Jones v.

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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
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and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor

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does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

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enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,

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557. A plaintiff must allege with at least some degree of particularity overt acts which the

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defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.

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Moreover, jurisdiction is a threshold inquiry that must precede the adjudication of any

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case before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of

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Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited

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jurisdiction and may adjudicate only those cases authorized by federal law. Kokkonen v.

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Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37

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(1992). “Federal courts are presumed to lack jurisdiction, ‘unless the contrary appears

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affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting

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Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)).

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Lack of subject matter jurisdiction may be raised by the court at any time during the

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proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir.

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1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has

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

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obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v.

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Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court

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cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.

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The burden of establishing jurisdiction rests upon plaintiff as the party asserting

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

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

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

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within the jurisdiction of the District Court”); Bell v. Hood, 327 U.S. 678, 682-83 (1946)

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(recognizing that a claim is subject to dismissal for want of jurisdiction where it is “wholly

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insubstantial and frivolous” and so patently without merit as to justify dismissal for lack of

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jurisdiction ); Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (holding that even
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“[a] paid complaint that is ‘obviously frivolous’ does not confer federal subject matter jurisdiction

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. . . and may be dismissed sua sponte before service of process.”).
Here, plaintiff’s complaint alleges that he contracted Hepatitis-C from the defendant who

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never warned plaintiff that she had Hepatitis-C.1 Plaintiff explains that he “would like the court

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to hold the defendant . . . accountable for infecting” him with Hepatitis-C. (Complaint (Dkt. No.

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1) at 7.) Based on this allegation the complaint asserts causes of action for negligence and

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“Intentional Tort.” (Id. at 8-9.) With respect to jurisdiction, the complaint asserts that “[t]his

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court is the proper court because” the injury occurred in its jurisdictional area.2 (Id. at 2.)
However, the fact that the events allegedly resulting in plaintiff’s injury occurred within

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the jurisdictional boundaries of this federal court does not, by itself, provide this court with

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subject matter jurisdiction over plaintiff’s cause of action. The complaint’s claims for negligence

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and intentional tort are based on California state law. Although a court may exercise

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supplemental jurisdiction over state law claims, the plaintiff must first have a cognizable claim

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for relief under federal law. See 28 U.S.C. § 1367.
Here, because it appears that the court lacks subject matter jurisdiction over plaintiff’s

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state law claims, the court cannot evaluate the sufficiency of those claims and this matter must be

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dismissed. The undersigned has carefully considered whether plaintiff may amend the complaint

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to state a claim over which this court would have subject matter jurisdiction. “Valid reasons for

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denying leave to amend include undue delay, bad faith, prejudice, and futility.” California

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Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also

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Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)

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(holding that while leave to amend shall be freely given, the court does not have to allow futile

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In his complaint plaintiff alleges that he “was informed of [his] current condition . . . while
being arraigned for spouse abuse due to the breakup of [his] relationship with the defendant” and
that plaintiff is currently confined at the Rio Cosumnes Correctional Facility in Elk Grove, CA.
(Complaint (Dkt. No. 1) at 6.)
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Plaintiff’s complaint was submitted on a Form Approved for Optional Use by the Judicial
Council of California.
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amendments). In light of the apparent lack of subject matter jurisdiction over plaintiff’s state law

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claims the undersigned finds that granting leave to amend would be futile.3

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Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff’s June 23, 2014 application to proceed in forma pauperis (Dkt. No. 2)

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be denied;
2. Plaintiff’s June 23, 2014 complaint (Dkt. No. 1) be dismissed without leave to

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amend; and

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3. This action be dismissed.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. A document containing objections should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may, under certain circumstances, waive the right to appeal

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

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Dated: October 24, 2014

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DAD:6
Ddad1\orders.pro se\turner1496.dwolta.f&rs.docx

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If plaintiff believes that a basis for this federal court’s subject matter jurisdiction over this
action exists, he should assert and support that argument in his objections to these findings and
recommendations.
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