Johnson v. Walker-Johnson et al

Filing 7

ORDER DISMISSING THE COMPLAINT AND DENYING RENEWED REQUEST TO PROCEED IN FORMA PAUPERIS by Judge Alsup granting in part and denying in part 6 Motion for Reconsideration (whalc1, COURT STAFF) (Filed on 4/18/2011) (Additional attachment(s) added on 4/18/2011: # 1 Certificate of Service) (wsn, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RONALD JOHNSON,

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For the Northern District of California

United States District Court

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No. C 11-01777 WHA

Plaintiff,
v.

ORDER DISMISSING
THE COMPLAINT AND
DENYING RENEWED
REQUEST TO PROCEED
IN FORMA PAUPERIS

CHERYL WALKER-JOHNSON and
JESUS M. MALDONADO, Esq.,
Defendant.
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Plaintiff Ronald Johnson’s request to proceed in forma pauperis was denied on April 12.

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Three days later, Johnson filed a motion for reconsideration of the denial. Johnson’s instant

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motion is procedurally defective, because Johnson neither sought nor received leave to file a

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motion for reconsideration as required by Civil Local Rule 7-9. Nonetheless, as a concession to

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the shortness of life, the substance of Johnson’s most recent filing will be considered and

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disposed of on the merits.

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The order denying Johnson’s original application for leave to proceed in forma pauperis

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made the following findings: “Johnson reports that his wife earns a salary of $48,000 per year

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and that he owns a 2001 Chrysler Sebring automobile. These facts do not support a finding that

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Johnson is indigent and unable to pay the filing fees.” (Dkt. No. 5). Johnson’s motion for

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reconsideration clarifies his financial circumstances as follows: “I am in the middle of a divorce,

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I’m separated from my wife and she cut me off her health plan. I’m seeking $720 per month and

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to be placed back on her health plan. Your Honor, right now I’m out of work, I just got out of the

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hospital for diabetes, high blood pressure, and a Liver condition.” (Dkt. No. 6). In contrast to

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Johnson’s original application, this new information would support a finding that he is unable to

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pay the filing fees. Granting Johnson’s renewed request to proceed in forma pauperis, however,

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would be an exercise in futility.
Once an application to proceed in forma pauperis is filed, the complaint may be dismissed

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prior to service of process if the claims are “frivolous or malicious.” 28 U.S.C. 1915(e)(2)(B)(i);

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Neitzke v. Williams, 490 U.S. 319, 328 (1989). Here, Johnson’s complaint does not state any

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cognizable claim of which this district court would have jurisdiction. As such, it is frivolous.

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The complaint purports to advance two claims for relief. In the second count, Johnson

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For the Northern District of California

United States District Court

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claims that his ex-wife and her lawyer have violated his equal-protection rights under the

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Fourteenth Amendment by failing to comply with a court order in another action (Compl. ¶¶ 5–7).

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The Equal Protection Clause reaches only state actors. Fitzgerald v. Barnstable Sch. Comm.,

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555 U.S. 246, 796 (2009). Defendants are not state actors. Johnson alleges no facts that could

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support a finding that his ex-wife or her lawyer acted on behalf of the government in supposedly

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disobeying a court order.

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In the first count, Johnson claims that his ex-wife discontinued his health plan “in

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violation of State Law” (Compl. ¶¶ 2–4) The court lacks subject-matter jurisdiction of this claim.

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United States district courts have original federal-question jurisdiction “of all civil actions arising

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under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 1331. Because count

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one is based on “State Law” it does not “arise under” the federal laws. There is no federal-

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question jurisdiction. United States district courts have original diversity jurisdiction “of all civil

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actions where the matter in controversy exceeds the sum or value of $75,000” and is between

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parties of diverse citizenship. 28 U.S.C. 1332. Here, Johnson states that all parties are citizens of

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California, and he pleads as damages only “a sum in excess of $50,000.00” (Compl. ¶ 1). There

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is no diversity jurisdiction. Because count two fails to state a claim as a matter of law, there is no

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possibility for exercising pendent jurisdiction over the first count, either.

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The complaint is DISMISSED. Plaintiff’s renewed request to proceed in forma pauperis is

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DENIED AS MOOT. Within FOURTEEN CALENDAR DAYS plaintiff may seek leave to file an

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amended complaint. If plaintiff chooses to do so, he should file a motion for leave to file an

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amended complaint. A proposed amended complaint must be appended to the motion. The

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motion should clearly explain how the amendments to the complaint address the problems

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identified in this order. If no such motion is filed, or if the proposed amended complaint still fails

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to state a claim, the case will be closed.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: April 18, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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