Thompson v. Hall

Filing 4

ORDER granting 3 In Forma Pauperis Application and REPORT AND RECOMMENDATION re: 1 Complaint filed by Tracey N. Thompson; Objections due by 10/5/2016. Signed by Judge Maria-Elena James on 9/19/2016. (mejlc2S, COURT STAFF) (Filed on 9/19/2016)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 TRACEY N. THOMPSON, Case No. 16-cv-04706-MEJ Plaintiff, 7 ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS v. 8 9 JERRY HALL, REPORT & RECOMMENDATION Defendant. 10 United States District Court Northern District of California 11 INTRODUCTION & IN FORMA PAUPERIS APPLICATION 12 On August 15, 2016, Plaintiff Tracey N. Thompson (“Plaintiff”) filed a Complaint and an 13 14 Application to Proceed In Forma Pauperis. Compl., Dkt. No. 1; Appl., Dkt. No. 3. A district 15 court may authorize the start of a civil action in forma pauperis if the court is satisfied the would- 16 be plaintiff cannot pay the filing fees required to pursue the lawsuit. 28 U.S.C. § 1915(a)(1). 17 Plaintiff submitted the required documentation declaring she is unable to pay the costs of this 18 action, and it is evident from the Application that Plaintiff’s assets and income are insufficient to 19 pay the court filing-fees. See Appl. Accordingly, the Court GRANTS Plaintiff’s Application to 20 Proceed In Forma Pauperis. However, as Plaintiff did not yet consent to the jurisdiction of a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), the Clerk of Court shall 22 REASSIGN this case to a District Judge with the undersigned’s RECOMMENDATION that the 23 Complaint be DISMISSED WITH LEAVE TO AMEND. SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(E)(2) 24 25 26 A. Legal Standard While the Court has granted Plaintiff’s Application to Proceed In Forma Pauperis, it must 27 also review Plaintiff’s Complaint to determine whether the action may be allowed to proceed. 28 The Court must dismiss the Complaint if it is frivolous, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 2 28 U.S.C. § 1915(e)(2)(B). To make this determination, courts assess whether there is a factual 3 and legal basis for the asserted wrong, “however inartfully pleaded.” Franklin v. Murphy, 745 4 F.2d 1221, 1227 (9th Cir. 1984) (quotation omitted). Pro se pleadings are liberally construed. 5 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Moreover, when dismissing a case, the 6 Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no 7 request to amend the pleading was made, unless it determines that the pleading could not possibly 8 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 9 Thus, unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff 10 proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. 11 United States District Court Northern District of California 1 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 12 B. Allegations in the Complaint Plaintiff’s Complaint alleges that Defendant Jerry Hall “used [Plaintiff] to open a nice big 13 14 CVS Pharmacy store and mini market on 7th Street and Market Street” in San Francisco, 15 California and that Hall “wishes to include [Plaintiff] in the profits since it was [Plaintiff’s] idea to 16 open a store there.” Compl. at 1. She does not otherwise explain how Hall injured her. Plaintiff also lists Stuart Murray as a Defendant, appearing to allege that he damaged her 17 18 “right buttox and she had surgery on it[.]” Id. (errors in original). It is unclear if Plaintiff seeks to 19 assert claims against Murray, however, as she crossed out his name and one of the allegations 20 about her injury. Id. She also does not name Murray on her civil cover sheet. Id. at 2 (civil cover 21 sheet included with the Complaint). Plaintiff’s civil cover sheet also lists Mick Jagger as a 22 Defendant, but again crossed out his name; the civil cover sheet further refers to Hall and Jagger 23 as the attorneys for the Defendant. Id. Plaintiff did not make direct allegations against Jagger in 24 her Complaint. 25 C. 26 Analysis and Screening under 28 U.S.C. § 1915(e)(2)(B) Having carefully reviewed Plaintiff’s Complaint, the undersigned recommends the district 27 court dismiss this case with leave to amend. The Complaint fails to state a claim at this point for 28 the following reasons: 2 1 First, Plaintiff has not alleged sufficient facts showing she is entitled to relief under Federal 2 Rule of Civil Procedure 8(a). See Fed. R. Civ. P. 8(a)(2) (a pleading that states a claim for relief 3 must contain “a short and plain statement of the claim showing that the pleader is entitled to 4 relief”); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a complaint must provide 5 a defendant with “fair notice” of the claims against it and the grounds for relief). Plaintiff 6 provides very little background information about the basis for this lawsuit. She does not specify 7 what if any wrongful conduct Defendant allegedly committed or specifically when and how. It is 8 also not clear what relief Plaintiff actually seeks through this lawsuit and against whom. 9 Second, it is not clear that this Court has jurisdiction over this action. Federal courts such as this one have limited jurisdiction, which means that the United States Constitution limits the 11 United States District Court Northern District of California 10 power of these courts to only hearing cases where the court has subject matter jurisdiction. 12 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Subject matter jurisdiction 13 is established by the party bringing the lawsuit in one of two ways: (1) by showing diversity of 14 citizenship (diversity jurisdiction) or (2) by raising a federal question (federal question 15 jurisdiction). Id. Subject matter jurisdiction is determined from the face of the complaint. Rivet 16 v. Regions Bank of La., 522 U.S. 470, 475 (1998); see also Caterpillar, Inc. v. Williams, 482 U.S. 17 386, 392 (1987) (federal question must be presented on face of plaintiff’s properly pleaded 18 complaint); Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90 (9th Cir. 1970) 19 (same re: diversity jurisdiction). While Plaintiff contends this Court has jurisdiction based on the 20 existence of a federal question in this action (see Civil Cover Sheet), she has not asserted any 21 federal claim, nor has she demonstrated the parties are diverse or that the amount in controversy 22 exceeds $75,000. Without more, the Court has no basis to exercise subject matter jurisdiction 23 over this action. 24 While there may be other issues associated with Plaintiff’s case that preclude her from 25 bringing this action in this Court, based on the issues above, the undersigned finds dismissal of the 26 current Complaint appropriate. Nonetheless, as Plaintiff is acting pro se, and given it is not clear 27 what she seeks to allege at this point, theoretically it is possible the deficiencies of the Complaint 28 could be cured by amendment. Consequently, the undersigned recommends the district court 3 1 grant Plaintiff one further opportunity to amend her Complaint. CONCLUSION 2 Based on the analysis above, the undersigned RECOMMENDS that the Complaint be 3 4 DISMISSED WITH LEAVE TO AMEND. Pursuant to Federal Rule of Civil Procedure 72, any 5 party may serve and file objections to this Report and Recommendation within 14 days after being 6 served. 7 Finally, the undersigned notes that Plaintiff may wish to seek assistance from the Legal 8 Help Center, a free service offered by the Justice & Diversity Center of the Bar Association of San 9 Francisco (“JDC”), by calling 415-782-8982, or by signing up for an appointment on the15th Floor, Room 2796, of the Federal Courthouse in San Francisco, 450 Golden Gate Avenue, San 11 United States District Court Northern District of California 10 Francisco, California. At the Legal Help Center, you will be able to speak with an attorney who 12 may be able to provide basic legal help but not representation. More information is available 13 online at: Plaintiff may also wish to obtain a copy of the 14 district court’s Handbook for Litigants Without a Lawyer. It provides instructions on how to 15 proceed at every stage of your case. The handbook is available in person at the Clerk’s Office and 16 online at: 17 IT IS SO ORDERED AND RECOMMENDED. 18 19 20 21 Dated: September 19, 2016 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 22 23 24 25 26 27 28 4

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