Smith v. Herb Thomas and Associates

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/6/17 Recommending that Plaintiff's 8/9/17 Application to proceed IFP 1 be denied; Plaintiff's 8/9/17 Complaint 2 be dismissed without prejudice; and This Action be dismissed. These Findings and Recommendations will be submitted to U.S. District Judge Morrison C. England, Jr. Objections to these F&Rs due within fourteen (14) days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERESA Y. SMITH,

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Plaintiff,

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No. 2:17-cv-1652 MCE DB PS

v.

FINDINGS AND RECOMMENDATIONS

HERB THOMAS & ASSOCIATES,

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Defendant.

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Plaintiff, Teresa Smith, 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). Pending

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before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. (ECF Nos. 1 & 2.) The complaint asserts that defendant manages “a trust

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account” and has unfairly treated plaintiff. (Compl. (ECF No. 1) at 5.)
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 complaint is deficient. Accordingly, for the reasons stated

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below, the undersigned will recommend that plaintiff’s application to proceed in forma pauperis

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be denied and that plaintiff’s complaint be dismissed without leave to amend.

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I.

Plaintiff’s Application to Proceed In Forma Pauperis
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 McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the

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district court did not abuse its discretion by denying McGee’s request to proceed IFP because it

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appears from the face of the amended complaint that McGee’s action is frivolous or without

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

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to 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:

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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).
II.

Plaintiff’s Complaint
Plaintiff’s complaint fails to set forth a short and plain statement of the grounds upon

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which the court’s jurisdiction depends or a statement of a claim showing that plaintiff is entitled

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to relief. In this regard, the complaint alleges that plaintiff’s son was awarded a settlement in

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“case number 2:15-cv-2511 MCE AC,” and that the settlement was put into a trust account

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managed by the defendant. (Compl. (ECF No. 1) at 5.) Plaintiff asserts that was “a big mistake”

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as plaintiff and her son are “treated unfair,” and have not been able to “enjoy” the settlement

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since defendant was appointed to manage the trust. (Id.) The complaint also alleges that there is

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a “conflict of interest” between plaintiff and the defendant, as plaintiff does not “get along with”

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defendant’s staff, and that plaintiff’s son has “no communication with Herb Thomas at all.” (Id.

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at 6.)

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Even accepting these allegations as true, they neither provide a basis for this court’s

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jurisdiction over this newly filed action nor state a claim upon which relief can be granted.1

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

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

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of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev.

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Moreover, it appears from documents filed in Smith v. City of Stockton, No. 2:15-cv-2511
MCE AC, that the Alameda County Probate court may maintain jurisdiction over the trust
account. Whether plaintiff can obtain relief in either the earlier filed action, No. 2:15-cv-2511
MCE AC, or before the Alameda County Probate court, is unclear to the undersigned.
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Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a

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formulaic recitation of the elements of cause of action will not do.’ Nor does a complaint suffice

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if it tenders ‘naked assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 556

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U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at

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least some degree of particularity overt acts which the defendants engaged in that support the

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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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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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Accordingly, for the reasons stated above, plaintiff’s complaint should be dismissed for

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lack of subject matter jurisdiction and for failure to state a claim upon which relief can be

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granted.

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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 August 9, 2017 application to proceed in forma pauperis (ECF No. 1) be

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denied;
2. Plaintiff’s August 9, 2017 complaint (ECF No. 1) be dismissed without prejudice; 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, plaintiffs 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: November 6, 2017

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DLB:6
DB/orders/orders.pro se/smith1652.ifp.den.f&rs

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