Begum v. USCIS Department

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 11/20/17 ORDERING that Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is GRANTED; Plaintiff's first amended complaint is DISMISSED WITH LEAVE TO AMEND; Within 28 days of t his order, plaintiff shall file either a first amended complaint in compliance with this order or a request for voluntary dismissal of the action without prejudice; Failure to timely comply with this order may result in dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FEHMIDA BEGUM,

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Plaintiff,

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No. 2:17-cv-02375-JAM-KJN PS

v.

ORDER

USCIS DEPARTMENT,

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Defendant.

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Plaintiff Fehmida Begum, who proceeds without counsel in this action, has requested

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) Plaintiff’s

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application in support of her request to proceed in forma pauperis makes the showing required by

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28 U.S.C. § 1915. Accordingly, the court grants plaintiff’s request to proceed in forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any

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time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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This action proceeds before the undersigned pursuant to Local Rule 302(c)(21).
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an immune defendant.

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Moreover, a federal court has an independent duty to assess whether federal subject matter

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jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v.

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Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty

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to establish subject matter jurisdiction over the removed action sua sponte, whether the parties

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raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996).

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The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject

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matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original

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jurisdiction over a civil action when: (1) a federal question is presented in an action “arising

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under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of

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citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a).
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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear

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that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma

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pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll

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v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th

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Cir. 1984).

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In this case, plaintiff’s complaint is vague and lacks any request for relief. Plaintiff is

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apparently dissatisfied with the fees she paid to the United States Citizenship and Immigration

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Services (“USCIS”), associated with a petition she filed for her daughter, who lives in Pakistan.

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(ECF No. 1 at 5.) Plaintiff asserts that she has “been victim of a lot of charges of mailing,

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immigration fees, DNA fees, physical and mental harassment by USCIS Department [sic].” (Id.

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at 6.) At the same time, plaintiff has failed to explain exactly what occurred and she has failed to

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state what relief she seeks.

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Furthermore, plaintiff checked a box indicating that 28 U.S.C. § 1332, diversity of

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citizenship, is the basis for federal subject matter jurisdiction in this case. (ECF No. 1 at 3.)

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However, defendant USCIS is a federal agency and is not a citizen of any state. Therefore,

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plaintiff cannot bring a claim under diversity of citizenship against USCIS. Additionally, plaintiff

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has indicated that she is not bringing a claim under any federal statute, treaty, or provision of the

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United States Constitution. (ECF No. 1 at 4.) Therefore, plaintiff has failed to establish a clear

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basis for federal subject matter jurisdiction. See 28 U.S.C. §§ 1331, 1332(a).

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In light of the above, the court dismisses plaintiff’s complaint, but with leave to amend. If

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plaintiff elects to file an amended complaint, it shall be captioned “First Amended Complaint”;

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shall address the deficiencies outlined above; and shall be filed within 28 days of this order.

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Specifically, in any amended pleading, plaintiff must state a basis for federal subject matter

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jurisdiction, such as a federal statute, a federal treaty, or a provision of the United States

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Constitution. Plaintiff must also clearly state what relief she seeks.

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Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order
to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint, and once the first amended complaint is

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filed, the initial complaint no longer serves any function in the case.

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Finally, nothing in this order requires plaintiff to file a first amended complaint. If

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plaintiff determines that she is unable to amend her complaint to state a viable claim in

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accordance with her obligations under Federal Rule of Civil Procedure 11, she may alternatively

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file a notice of voluntary dismissal of her claims without prejudice pursuant to Federal Rule of

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Civil Procedure 41(a)(1)(A)(i) within 28 days of this order.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s first amended complaint is dismissed with leave to amend.

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3. Within 28 days of this order, plaintiff shall file either a first amended complaint in

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compliance with this order or a request for voluntary dismissal of the action without

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prejudice.

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4. Failure to timely comply with this order may result in dismissal of the action with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: November 20, 2017

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14/17-2375.begum.IFP.leave to amend

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