Brittany v. United States of America
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 4/11/17 RECOMMENDING that Plaintiff's 11/28/16 application to proceed in forma pauperis 2 be DENIED; Plaintiff's 11/28/16 complaint 1 be DISMISSED without prejudice; and this action be DISMISSED. Referred to Judge John A. Mendez; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHALLA ALFARO BRITTANY,
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Plaintiff,
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No. 2:16-cv-2817 JAM DB PS
v.
FINDINGS AND RECOMMENDATIONS
UNITED STATES OF AMERICA,
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Defendant.
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Plaintiff, Michalla Alfaro Brittany, is proceeding in this action pro se. This matter was
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referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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Pending before the court is plaintiff’s complaint and motion to proceed in forma pauperis
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pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff seeks an “[a]nswer [to] a
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question about” her children.
The court is required to screen complaints brought by parties proceeding in forma
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pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
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2000) (en banc). Here, plaintiff’s application to proceed in forma pauperis and complaint are
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deficient. Accordingly, for the reasons stated below, the undersigned will recommend that
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plaintiff’s application to proceed in forma pauperis be denied and plaintiff’s complaint be
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dismissed without leave to amend.
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I.
Plaintiff’s Application to Proceed In Forma Pauperis
Plaintiff’s in forma pauperis application is incomplete. In this regard, plaintiff’s in forma
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pauperis application states that in the past twelve months plaintiff received money from several
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sources. Plaintiff, however, fails to state the amounts received and if she expects to continue to
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receive those funds. (ECF No. 2 at 1.) Moreover, even a determination that a plaintiff qualifies
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financially for in forma pauperis status does not complete the inquiry required by the statute.
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“‘A district court may deny leave to proceed in forma pauperis at the outset if it appears
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from the face of the proposed complaint that the action is frivolous or without merit.’” Minetti v.
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Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust,
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821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee v. Department of Child Support Services,
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584 Fed. Appx. 638 (9th Cir. 2014) (“the district court did not abuse its discretion by denying
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McGee’s request to proceed IFP because it appears from the face of the amended complaint that
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McGee’s action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.
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1965) (“It is the duty of the District Court to examine any application for leave to proceed in
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forma pauperis to determine whether the proposed proceeding has merit and if it appears that the
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proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in
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forma pauperis.”).
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The court must dismiss an in forma pauperis case at any time if the allegation of poverty is
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found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a
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claim on which relief may be granted, or seeks monetary relief against an immune defendant. See
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28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or
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in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
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1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous
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where it is based on an indisputably meritless legal theory or where the factual contentions are
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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:
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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.
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Fed. R. Civ. P. 8(a).
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II.
Plaintiff’s Complaint
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Plaintiff’s complaint fails to contain a short and plain statement of the grounds upon
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which the court’s jurisdiction depends and fails to state a claim showing that plaintiff is entitled to
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relief. The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer
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“federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be
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conferred by federal statutes regulating specific subject matter. “[T]he existence of federal
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jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to
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those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d
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1108, 1113 (9th Cir. 2000).
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District courts have diversity jurisdiction only over “all civil actions where the matter in
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controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action
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is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a
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foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are
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additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different
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States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be
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a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss,
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797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between
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the parties-each defendant must be a citizen of a different state from each plaintiff.” In re
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Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008).
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Moreover, although the Federal Rules of Civil Procedure adopt a flexible pleading policy,
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a 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.
Here, plaintiff’s complaint simply alleges that one of her children is suicidal, one of her
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children “keep going into a safeserve to live,” and the she has “a domestic violence problem with
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these two children (sic) Dad.” (Compl. (ECF No. 1) at 5.) In this regard, plaintiff’s complaint
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fails to allege a basis for this court’s jurisdiction. Moreover, even construed in the light most
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favorable to the plaintiff, it appears plaintiff’s complaint concerns only state family law matters.
Accordingly, for the reasons stated above, plaintiff’s complaint should be dismissed for
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lack of jurisdiction and failure to state a cognizable claim.
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III.
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Leave to Amend
The undersigned has carefully considered whether plaintiff may amend the complaint to
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state a claim over which the court would have jurisdiction and upon which relief could be
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granted. “Valid reasons for denying leave to amend include undue delay, bad faith, prejudice,
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and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472
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(9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d
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1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the court
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does not have to allow futile amendments). In light of the deficiencies noted above, the
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undersigned finds that it would be futile to grant plaintiff leave to amend in this case.
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CONCLUSION
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Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s November 28, 2016 application to proceed in forma pauperis (ECF No. 2)
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be denied;
2. Plaintiff’s November 28, 2016 complaint (ECF No. 1) be dismissed without prejudice;
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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: April 11, 2017
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DB/orders/orders.pro se/brittany2817.ifp.den.f&rs
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