Morrison v. U.S. Department of Justice

Filing 10

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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 SUSAN MORRISON, 11 For the Northern District of California United States District Court 10 12 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 13 Defendant. 14 15 / 16 17 The Court has received Plaintiff’s amended complaint filed on September 26, 2012. 18 The Court may authorize a plaintiff to file an action in federal court without prepayment of fees 19 or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees 20 or give security therefor. 28 U.S.C. § 1915(a). The in forma pauperis statute also provides that 21 the Court shall dismiss the case if at any time the Court determines that the allegation of poverty 22 is untrue, or that the action (1) is frivolous or malicious; (2) fails to state a claim on which relief 23 may be granted; or (3) seeks monetary relief against a defendant who is immune from such 24 relief. 28 U.S.C. § 1915(e)(2). A complaint is frivolous if “it lacks an arguable basis either in 25 law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Where a complaint fails to state 26 that any constitutional or statutory right was violated and fails to assert any basis for federal 27 subject matter jurisdiction, there is no arguable basis in law under Neitzke and the court may 28 dismiss the complaint under 19 U.S.C. § 1915(e)(2)(B). 1 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 4 subject matter jurisdiction is lacking, the Court must dismiss the case. Id.; Fed. R. Civ. P. 5 12(h)(3). California superior courts are courts of general, unlimited jurisdiction and can render 6 enforceable judgments in practically any type of case. However, federal courts have limited 7 jurisdiction. Federal courts can only adjudicate cases which the Constitution or Congress 8 authorize them to adjudicate: those cases involving diversity of citizenship (where the parties 9 are from diverse states), or a federal question, or those cases to which the United States is a 10 party. See, e.g., Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994). 11 For the Northern District of California sua sponte at any time it appears subject matter jurisdiction may be lacking. Fed. R. Civ. P. 12; 3 United States District Court 2 Federal courts are presumptively without jurisdiction over civil cases and the burden of 12 establishing the contrary rests upon the party asserting jurisdiction. Id. at 377. 13 When assessing whether to grant a plaintiff’s application to proceed without prepayment 14 of fees, the Court must also review the merits of the case to determine whether it is frivolous or 15 fails to state a claim upon which relief can by granted. To the extent it is comprehensible, 16 Plaintiff’s amended claim against the Department of Justice still appears be premised upon its 17 failure to investigate her allegation of civil rights violations perpetrated by other defendants. 18 However, the decision whether to investigate any particular complaint is “discretionary rather 19 than mandatory.” See Terrell v. Attorney General State of California, 1998 WL 574387, at *3 20 (N.D. Cal. Aug. 31, 1998), aff’d 188 F.3d 515 (9th Cir. 1999) (dismissing claims based on 21 failure by FBI to investigate allegations of civil rights violations, and noting that “[t]he court 22 can find no binding authority requiring the FBI to investigate every complaint it receives. To 23 the contrary, courts have consistently described the FBI’s mandate as a ‘discretionary rather 24 than mandatory authority.’”) (quoting Agunbiade v. United States, 893 F. Supp. 160, 163 25 (E.D.N.Y. 1995)). Accordingly, the decision by the Department of Justice in this matter not to 26 investigate Plaintiff’s amended complaint does not amount to a constitutional wrong. The 27 Court finds that Plaintiff has failed to state a claim upon which relief can be granted. 28 2 1 Having been given a second opportunity to amend her complaint and having again failed 2 to state a claim, the Court DENIES Plaintiff’s application to proceed in forma pauperis and 3 DISMISSES the amended complaint. A separate judgment shall issue and the Clerk shall close 4 the file. 5 6 IT IS SO ORDERED. Dated: October 1, 2012 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 UNITED STATES DISTRICT COURT 3 FOR THE 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 SUSAN MORRISON, Case Number: CV12-04093 JSW 7 Plaintiff, CERTIFICATE OF SERVICE 8 v. 9 US DEPARTMENT OF JUSTICE et al, 10 For the Northern District of California United States District Court Defendant. 11 12 13 14 15 / 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. 16 17 18 19 20 21 22 23 24 25 26 27 28 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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