Thompson v. Scicillian

Filing 9

ORDER DENYING 3 MOTION for Leave to Proceed in forma pauperis AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge JEFFREY S. WHITE on 12/22/11. (jjoS, COURT STAFF) (Filed on 12/22/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TRACEY N. THOMPSON,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 11-05609 JSW

v.
JOHN SCICILLIAN, FBI AGENT,

ORDER DENYING
APPLICATION TO PROCEED IN
FORMA PAUPERIS AND
DISMISSING COMPLAINT WITH
LEAVE TO AMEND

Defendant.

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The Court has received Plaintiff’s complaint and application to proceed in forma

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pauperis, both filed on November 18, 2011. The Court may authorize a plaintiff to file an

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action in federal court without prepayment of fees or security if the plaintiff submits an affidavit

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showing that he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a).

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The in forma pauperis statute also provides that the Court shall dismiss the case if at any time

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the Court determines that the allegation of poverty is untrue, or that the action (1) is frivolous or

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malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief

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against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint is

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frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S.

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319, 325 (1989). Where a complaint fails to state that any constitutional or statutory right was

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violated and fails to assert any basis for federal subject matter jurisdiction, there is no arguable

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basis in law under Neitzke and the court may dismiss the complaint under 19 U.S.C. §

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1915(e)(2)(B).
Federal courts are under a duty to raise and decide issues of subject matter jurisdiction

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sua sponte at any time it appears subject matter jurisdiction may be lacking. Fed. R. Civ. P. 12;

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Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court determines that

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subject matter jurisdiction is lacking, the Court must dismiss the case. Id.; Fed. R. Civ. P.

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12(h)(3). California superior courts are courts of general, unlimited jurisdiction and can render

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enforceable judgments in practically any type of case. However, federal courts have limited

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jurisdiction. Federal courts can only adjudicate cases which the Constitution or Congress

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authorize them to adjudicate: those cases involving diversity of citizenship (where the parties
are from diverse states), or a federal question, or those cases to which the United States is a

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For the Northern District of California

United States District Court

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party. See, e.g., Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994).

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Federal courts are presumptively without jurisdiction over civil cases and the burden of

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establishing the contrary rests upon the party asserting jurisdiction. Id. at 377.

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It is impossible to discern from Plaintiff’s complaint many of the essential details of the

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events giving rise to a claim. It is not clear whether Plaintiff asserts any federal claim or can

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demonstrate that there is complete diversity, meaning that the parties are citizens of different

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states, and that the amount at issue exceeds $75,000.

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As such, Plaintiff has failed to set forth “a short and plain statement of the claim

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showing that the pleader is entitled to relief” as required by Rule 8 of the Federal Rules of Civil

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Procedure. Plaintiff’s application to proceed in forma pauperis is HEREBY DENIED without

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prejudice and the complaint is DISMISSED. However, the Court shall afford Plaintiff an

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opportunity to amend her complaint.

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If Plaintiff wishes to pursue this action, she must file an amended complaint by January

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6, 2012. Failure to file a cognizable legal claim by this date shall result in dismissal of this

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action with prejudice. The Court advises Plaintiff that a Handbook for Pro Se Litigants, which

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contains helpful information about proceeding without an attorney, is available through the

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Court’s website or in the Clerk’s office. The Court also advises Plaintiff that additional

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assistance may be available by making an appointment with the Legal Help Center, which is

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located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, California, 94102.

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IT IS SO ORDERED.

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Dated: December 22, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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TRACEY N THOMPSON,

Case Number: CV11-05609 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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JOHN SCICILLIAN et al,
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Defendant.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on December 22, 2011, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
14 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
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17 Tracey N. Thompson
44 McAllister Street
18 No. 622
San Francisco, CA 94102
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Dated: December 22, 2011
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk