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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TRACEY N. THOMPSON,

Case No. 16-cv-04706-MEJ

Plaintiff,
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ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS

v.
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JERRY HALL,

REPORT & RECOMMENDATION

Defendant.
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United States District Court
Northern District of California

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INTRODUCTION & IN FORMA PAUPERIS APPLICATION

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On August 15, 2016, Plaintiff Tracey N. Thompson (“Plaintiff”) filed a Complaint and an

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Application to Proceed In Forma Pauperis. Compl., Dkt. No. 1; Appl., Dkt. No. 3. A district

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court may authorize the start of a civil action in forma pauperis if the court is satisfied the would-

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be plaintiff cannot pay the filing fees required to pursue the lawsuit. 28 U.S.C. § 1915(a)(1).

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Plaintiff submitted the required documentation declaring she is unable to pay the costs of this

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action, and it is evident from the Application that Plaintiff’s assets and income are insufficient to

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pay the court filing-fees. See Appl. Accordingly, the Court GRANTS Plaintiff’s Application to

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Proceed In Forma Pauperis. However, as Plaintiff did not yet consent to the jurisdiction of a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), the Clerk of Court shall

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REASSIGN this case to a District Judge with the undersigned’s RECOMMENDATION that the

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Complaint be DISMISSED WITH LEAVE TO AMEND.
SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(E)(2)

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A.

Legal Standard
While the Court has granted Plaintiff’s Application to Proceed In Forma Pauperis, it must

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also review Plaintiff’s Complaint to determine whether the action may be allowed to proceed.

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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.

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28 U.S.C. § 1915(e)(2)(B). To make this determination, courts assess whether there is a factual

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and legal basis for the asserted wrong, “however inartfully pleaded.” Franklin v. Murphy, 745

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F.2d 1221, 1227 (9th Cir. 1984) (quotation omitted). Pro se pleadings are liberally construed.

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Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Moreover, when dismissing a case, the

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Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no

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request to amend the pleading was made, unless it determines that the pleading could not possibly

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be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Thus, unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff

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proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal.

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United States District Court
Northern District of California

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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B.

Allegations in the Complaint
Plaintiff’s Complaint alleges that Defendant Jerry Hall “used [Plaintiff] to open a nice big

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CVS Pharmacy store and mini market on 7th Street and Market Street” in San Francisco,

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California and that Hall “wishes to include [Plaintiff] in the profits since it was [Plaintiff’s] idea to

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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

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“right buttox and she had surgery on it[.]” Id. (errors in original). It is unclear if Plaintiff seeks to

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assert claims against Murray, however, as she crossed out his name and one of the allegations

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about her injury. Id. She also does not name Murray on her civil cover sheet. Id. at 2 (civil cover

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sheet included with the Complaint). Plaintiff’s civil cover sheet also lists Mick Jagger as a

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Defendant, but again crossed out his name; the civil cover sheet further refers to Hall and Jagger

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as the attorneys for the Defendant. Id. Plaintiff did not make direct allegations against Jagger in

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her Complaint.

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C.

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Analysis and Screening under 28 U.S.C. § 1915(e)(2)(B)
Having carefully reviewed Plaintiff’s Complaint, the undersigned recommends the district

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court dismiss this case with leave to amend. The Complaint fails to state a claim at this point for

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the following reasons:
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First, Plaintiff has not alleged sufficient facts showing she is entitled to relief under Federal

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Rule of Civil Procedure 8(a). See Fed. R. Civ. P. 8(a)(2) (a pleading that states a claim for relief

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must contain “a short and plain statement of the claim showing that the pleader is entitled to

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relief”); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a complaint must provide

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a defendant with “fair notice” of the claims against it and the grounds for relief). Plaintiff

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provides very little background information about the basis for this lawsuit. She does not specify

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what if any wrongful conduct Defendant allegedly committed or specifically when and how. It is

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also not clear what relief Plaintiff actually seeks through this lawsuit and against whom.

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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

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United States District Court
Northern District of California

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power of these courts to only hearing cases where the court has subject matter jurisdiction.

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Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Subject matter jurisdiction

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is established by the party bringing the lawsuit in one of two ways: (1) by showing diversity of

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citizenship (diversity jurisdiction) or (2) by raising a federal question (federal question

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jurisdiction). Id. Subject matter jurisdiction is determined from the face of the complaint. Rivet

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v. Regions Bank of La., 522 U.S. 470, 475 (1998); see also Caterpillar, Inc. v. Williams, 482 U.S.

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386, 392 (1987) (federal question must be presented on face of plaintiff’s properly pleaded

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complaint); Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90 (9th Cir. 1970)

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(same re: diversity jurisdiction). While Plaintiff contends this Court has jurisdiction based on the

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existence of a federal question in this action (see Civil Cover Sheet), she has not asserted any

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federal claim, nor has she demonstrated the parties are diverse or that the amount in controversy

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exceeds $75,000. Without more, the Court has no basis to exercise subject matter jurisdiction

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over this action.

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While there may be other issues associated with Plaintiff’s case that preclude her from

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bringing this action in this Court, based on the issues above, the undersigned finds dismissal of the

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current Complaint appropriate. Nonetheless, as Plaintiff is acting pro se, and given it is not clear

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what she seeks to allege at this point, theoretically it is possible the deficiencies of the Complaint

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could be cured by amendment. Consequently, the undersigned recommends the district court
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grant Plaintiff one further opportunity to amend her Complaint.
CONCLUSION

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Based on the analysis above, the undersigned RECOMMENDS that the Complaint be

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DISMISSED WITH LEAVE TO AMEND. Pursuant to Federal Rule of Civil Procedure 72, any

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party may serve and file objections to this Report and Recommendation within 14 days after being

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served.

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Finally, the undersigned notes that Plaintiff may wish to seek assistance from the Legal

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Help Center, a free service offered by the Justice & Diversity Center of the Bar Association of San

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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

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United States District Court
Northern District of California

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Francisco, California. At the Legal Help Center, you will be able to speak with an attorney who

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may be able to provide basic legal help but not representation. More information is available

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online at: http://cand.uscourts.gov/helpcentersf. Plaintiff may also wish to obtain a copy of the

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district court’s Handbook for Litigants Without a Lawyer. It provides instructions on how to

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proceed at every stage of your case. The handbook is available in person at the Clerk’s Office and

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online at: http://cand.uscourts.gov/prosehandbook.

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IT IS SO ORDERED AND RECOMMENDED.

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Dated: September 19, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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