Brittany v. United States of America

Filing 3

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MICHALLA ALFARO BRITTANY,

12

Plaintiff,

13
14

No. 2:16-cv-2817 JAM DB PS

v.

FINDINGS AND RECOMMENDATIONS

UNITED STATES OF AMERICA,

15

Defendant.

16
Plaintiff, Michalla Alfaro Brittany, is proceeding in this action pro se. This matter was

17
18

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

19

Pending before the court is plaintiff’s complaint and motion to proceed in forma pauperis

20

pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff seeks an “[a]nswer [to] a

21

question about” her children.
The court is required to screen complaints brought by parties proceeding in forma

22
23

pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

24

2000) (en banc). Here, plaintiff’s application to proceed in forma pauperis and complaint are

25

deficient. Accordingly, for the reasons stated below, the undersigned will recommend that

26

plaintiff’s application to proceed in forma pauperis be denied and plaintiff’s complaint be

27

dismissed without leave to amend.

28

////
1

1
2

I.

Plaintiff’s Application to Proceed In Forma Pauperis
Plaintiff’s in forma pauperis application is incomplete. In this regard, plaintiff’s in forma

3

pauperis application states that in the past twelve months plaintiff received money from several

4

sources. Plaintiff, however, fails to state the amounts received and if she expects to continue to

5

receive those funds. (ECF No. 2 at 1.) Moreover, even a determination that a plaintiff qualifies

6

financially for in forma pauperis status does not complete the inquiry required by the statute.

7

“‘A district court may deny leave to proceed in forma pauperis at the outset if it appears

8

from the face of the proposed complaint that the action is frivolous or without merit.’” Minetti v.

9

Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust,

10

821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee v. Department of Child Support Services,

11

584 Fed. Appx. 638 (9th Cir. 2014) (“the district court did not abuse its discretion by denying

12

McGee’s request to proceed IFP because it appears from the face of the amended complaint that

13

McGee’s action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

14

1965) (“It is the duty of the District Court to examine any application for leave to proceed in

15

forma pauperis to determine whether the proposed proceeding has merit and if it appears that the

16

proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in

17

forma pauperis.”).

18

The court must dismiss an in forma pauperis case at any time if the allegation of poverty is

19

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

20

claim on which relief may be granted, or seeks monetary relief against an immune defendant. See

21

28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or

22

in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

23

1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous

24

where it is based on an indisputably meritless legal theory or where the factual contentions are

25

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

26

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

27

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

28

570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
2

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

The minimum requirements for a civil complaint in federal court are as follows:

9

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.

10
11
12

Fed. R. Civ. P. 8(a).

13

II.

Plaintiff’s Complaint

14

Plaintiff’s complaint fails to contain a short and plain statement of the grounds upon

15

which the court’s jurisdiction depends and fails to state a claim showing that plaintiff is entitled to

16

relief. The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer

17

“federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be

18

conferred by federal statutes regulating specific subject matter. “[T]he existence of federal

19

jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to

20

those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d

21

1108, 1113 (9th Cir. 2000).

22

District courts have diversity jurisdiction only over “all civil actions where the matter in

23

controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action

24

is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a

25

foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are

26

additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different

27

States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be

28

a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss,
3

1

797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between

2

the parties-each defendant must be a citizen of a different state from each plaintiff.” In re

3

Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008).

4

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

5

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

6

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

7

Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels

8

and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor

9

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

10

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

11

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

12

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

13
14

children “keep going into a safeserve to live,” and the she has “a domestic violence problem with

15

these two children (sic) Dad.” (Compl. (ECF No. 1) at 5.) In this regard, plaintiff’s complaint

16

fails to allege a basis for this court’s jurisdiction. Moreover, even construed in the light most

17

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

18
19

lack of jurisdiction and failure to state a cognizable claim.

20

III.

21

Leave to Amend
The undersigned has carefully considered whether plaintiff may amend the complaint to

22

state a claim over which the court would have jurisdiction and upon which relief could be

23

granted. “Valid reasons for denying leave to amend include undue delay, bad faith, prejudice,

24

and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472

25

(9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d

26

1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the court

27

does not have to allow futile amendments). In light of the deficiencies noted above, the

28

undersigned finds that it would be futile to grant plaintiff leave to amend in this case.
4

1

CONCLUSION

2

Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that:

3

1. Plaintiff’s November 28, 2016 application to proceed in forma pauperis (ECF No. 2)

4

be denied;
2. Plaintiff’s November 28, 2016 complaint (ECF No. 1) be dismissed without prejudice;

5
6

and

7

3. This action be dismissed.

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

Dated: April 11, 2017

16
17
18
19
20
21
22

DLB:6
DB/orders/orders.pro se/brittany2817.ifp.den.f&rs

23
24
25
26
27
28
5