Morrison v. U.S. Department of Justice
Filing
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ORDER DISMISSING THE AMENDED COMPLAINT AND DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS. Signed by Judge JEFFREY S. WHITE on 10/1/12. (jjoS, COURT STAFF) (Filed on 10/1/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SUSAN MORRISON,
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For the Northern District of California
United States District Court
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No. C 12-04093 JSW
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
JUSTICE,
ORDER DISMISSING THE
AMENDED COMPLAINT AND
DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS
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Defendant.
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The Court has received Plaintiff’s amended complaint filed on September 26, 2012.
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The Court may authorize a plaintiff to file an action in federal court without prepayment of fees
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or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees
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or give security therefor. 28 U.S.C. § 1915(a). The in forma pauperis statute also provides that
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the Court shall dismiss the case if at any time the Court determines that the allegation of poverty
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is untrue, or that the action (1) is frivolous or malicious; (2) fails to state a claim on which relief
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may be granted; or (3) seeks monetary relief against a defendant who is immune from such
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relief. 28 U.S.C. § 1915(e)(2). A complaint is frivolous if “it lacks an arguable basis either in
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law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Where a complaint fails to state
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that any constitutional or statutory right was violated and fails to assert any basis for federal
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subject matter jurisdiction, there is no arguable basis in law under Neitzke and the court may
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dismiss the complaint under 19 U.S.C. § 1915(e)(2)(B).
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Federal courts are under a duty to raise and decide issues of subject matter jurisdiction
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
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are from diverse states), or a federal question, or those cases to which the United States is a
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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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For the Northern District of California
sua sponte at any time it appears subject matter jurisdiction may be lacking. Fed. R. Civ. P. 12;
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United States District Court
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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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When assessing whether to grant a plaintiff’s application to proceed without prepayment
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of fees, the Court must also review the merits of the case to determine whether it is frivolous or
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fails to state a claim upon which relief can by granted. To the extent it is comprehensible,
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Plaintiff’s amended claim against the Department of Justice still appears be premised upon its
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failure to investigate her allegation of civil rights violations perpetrated by other defendants.
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However, the decision whether to investigate any particular complaint is “discretionary rather
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than mandatory.” See Terrell v. Attorney General State of California, 1998 WL 574387, at *3
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(N.D. Cal. Aug. 31, 1998), aff’d 188 F.3d 515 (9th Cir. 1999) (dismissing claims based on
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failure by FBI to investigate allegations of civil rights violations, and noting that “[t]he court
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can find no binding authority requiring the FBI to investigate every complaint it receives. To
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the contrary, courts have consistently described the FBI’s mandate as a ‘discretionary rather
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than mandatory authority.’”) (quoting Agunbiade v. United States, 893 F. Supp. 160, 163
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(E.D.N.Y. 1995)). Accordingly, the decision by the Department of Justice in this matter not to
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investigate Plaintiff’s amended complaint does not amount to a constitutional wrong. The
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Court finds that Plaintiff has failed to state a claim upon which relief can be granted.
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Having been given a second opportunity to amend her complaint and having again failed
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to state a claim, the Court DENIES Plaintiff’s application to proceed in forma pauperis and
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DISMISSES the amended complaint. A separate judgment shall issue and the Clerk shall close
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the file.
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IT IS SO ORDERED.
Dated: October 1, 2012
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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SUSAN MORRISON,
Case Number: CV12-04093 JSW
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Plaintiff,
CERTIFICATE OF SERVICE
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v.
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US DEPARTMENT OF JUSTICE et al,
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For the Northern District of California
United States District Court
Defendant.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on October 1, 2012, 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 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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Susan Morrison
1020 Post Street
Apt. 403
San Francisco, CA 94109
Dated: October 1, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
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