Spitters v. Psynergy et al

Filing 8

ORDER REGARDING 4 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DISMISSING COMPLAINT, AND DENYING IFP APPLICATION(pjhlc1, COURT STAFF) (Filed on 9/10/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS HEATON SPITTERS,

Case No. 18-cv-03639-PJH

Plaintiff,
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ORDER REGARDING MAGISTRATE
JUDGE'S REPORT AND
RECOMMENDATION, DISMISSING
COMPLAINT, AND DENYING IFP
APPLICATION

v.
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PSYNERGY, et al.,
Defendants.

Re: Dkt. No. 4

United States District Court
Northern District of California

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The court has reviewed Magistrate Judge Sallie Kim's Report and

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Recommendation to Dismiss the Complaint, as well as plaintiff’s subsequent filing. See

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Dkts. 4 & 7. The court finds the report correct, well-reasoned and thorough, and adopts

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it’s reasoning with respect to the recommendation to dismiss the complaint. In particular,

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Judge Kim correctly determined that plaintiff “fails to provide any facts to support

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jurisdiction[.]” Dkt. 4 at 2.
DISCUSSION

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A.

Whether to Dismiss the Complaint

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Federal district courts can only adjudicate cases as authorized by the Constitution

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and Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994). District

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courts can adjudicate cases where the parties are diverse in state citizenship, where

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there's a presence of a federal question, and cases where the United States is a party.

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Id. The party asserting jurisdiction bears the burden of establishing it in federal court. Id.

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at 377. Federal courts must dismiss a complaint if the complaint lacks subject matter

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jurisdiction. Fed. R. Civ. P. 12; Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.

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1983).

First, plaintiff does not allege any facts that would establish diversity jurisdiction.

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Diversity jurisdiction requires that parties be citizens of different states and the amount in

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controversy exceeds $75,000. Plaintiff does not state where defendants reside, nor does

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he allege any facts to show that the amount in controversy exceeds $75,000.
Second, plaintiff does not allege any facts to show federal question jurisdiction.

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Plaintiff does not refer to federal law, nor does plaintiff name the United States as a party.

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In fact, as Jude Kim recognized, “[i]t is not clear at all from the Complaint what claim or

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claims Plaintiff seeks to assert.” Dkt. 4 at 2. As such, plaintiff fails to allege that this

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court has jurisdiction to adjudicate his complaint.
Plaintiff’s complaint is therefore DISMISSED WITH LEAVE TO AMEND.

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United States District Court
Northern District of California

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B.

Whether Plaintiff May Proceed IFP
The court finds that plaintiff has failed to make the necessary showing to proceed

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in forma pauperis (“IFP”). The court may authorize a plaintiff to file an action in federal

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court without prepayment of fees if the plaintiff submits an affidavit showing that he or she

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is unable to pay such fees. 28 U.S.C. § 1915(a). The affidavit must include a statement

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of the plaintiff’s assets and sufficient information to determine whether he is able to pay

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the fees. Id. Here, plaintiff has summarily stated that his annual wages, liquid savings,

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and personal property are “de minimus.” Dkt. 2. Whether plaintiff’s assets qualify him to

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proceed IFP is a conclusion for the court to draw based on plaintiff’s accurate and factual

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reporting of his assets. That is, the court will decide whether plaintiff’s assets are

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sufficient to proceed IFP. Plaintiff may not make that determination himself by labeling

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what assets he does have as “de minimus.”

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Plaintiff’s application to proceed IFP is therefore DENIED WITHOUT PREJUDICE.

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Plaintiff may again seek permission to proceed IFP by filing an amended IFP application

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that reports factual and accurate information about his assets.

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CONCLUSION
Plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND. No other claims or
parties may be added without leave of court. Plaintiff must file any amended complaint
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by October 5, 2018. Plaintiff’s IFP application is DENIED WITHOUT PREJUDICE.

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Plaintiff must file any amended IFP application by October 5, 2018.

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IT IS SO ORDERED.

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Dated: September 10, 2018

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_________________________________
PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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