Garcia v. West

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis and denying 3 Motion to Appoint Counsel as Moot. The Complaint is Dismissed without prejudice. No later than thirty (30) Days from the date of this Order, Plaintiff may file an amende d complaint, which shall be entitled, "First Amended Complaint," and which shall sufficiently allege a basis for federal subject matter jurisdiction. If Plaintiff does not file an amended complaint within thirty days, the Court will order this case to be closed. Signed by Judge William Q. Hayes on 5/28/10. (All non-registered users served via U.S. Mail Service)(lao)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 HAYES, Judge: 16 The matters before the Court are the Motion for Leave to Proceed in Forma Pauperis 17 ("Motion to Proceed IFP") (Doc. # 2) and the Motion to Appoint Counsel (Doc. # 3). 18 19 BACKGROUND On May 27, 2010, Plaintiff Imelda Garcia, a nonprisoner proceeding pro se, initiated IMELDA GARCIA, Plaintiff, vs. CHRISTOPHER BLAKE WEST, Defendant. CASE NO. 10cv1154-WQH-NLS ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

20 this action by filing a Complaint in this Court. (Doc. # 1). On May 27, 2010, Plaintiff filed 21 the Motion to Proceed IFP and the Motion to Appoint Counsel. (Doc. # 2, 3). 22 23 24 ANALYSIS Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the United

25 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 26 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee 27 only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. 28 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
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In an affidavit accompanying the Motion to Proceed IFP, Plaintiff states that she is not

2 currently employed, but receives $760.50 each month in Social Security benefits. (Doc. # 2 3 at 2). Plaintiff states that she owns a 1994 Nissan Sentra, and has no other assets of value. 4 (Doc. # 2 at 2-3). Plaintiff states that she "contribute[s] 70-80% to [her daughter's] support." 5 (Doc. #2 at 3). The Court has reviewed Plaintiff's affidavit and finds it is sufficient to show 6 that Plaintiff is unable to pay the fees required to maintain this action. The Court grants the 7 Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 8 9 Initial Screening After granting IFP status, the Court must dismiss the case sua sponte if the case "fails

10 to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B); see also Calhoun 11 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001). In addition, "[i]f the court determines at anytime 12 that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 13 12(h)(3); see also Cal. Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 14 1974) ("It has long been held that a judge can dismiss sua sponte for lack of jurisdiction"). 15 Federal courts­unlike state courts­are courts of limited jurisdiction and lack inherent

16 or general subject matter jurisdiction. Federal courts can only adjudicate those cases in which 17 the United States Constitution and Congress authorize them to adjudicate. See Kokkonen v. 18 Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The presumption is that federal courts lack 19 jurisdiction over civil actions, and the burden to establish the contrary rests upon the party 20 asserting jurisdiction. See id. In the federal courts, subject matter jurisdiction may arise from 21 either "federal question jurisdiction" or "diversity jurisdiction." Caterpillar Inc. v. Williams, 22 482 U.S. 386, 392 (1987); see also 28 U.S.C. §§ 1331-32. To invoke diversity jurisdiction, 23 the complaint must allege that "the matter in controversy exceeds the sum or value of $75,000, 24 exclusive of interest and costs, and is between ... citizens of different States ... [or] citizens of 25 a State and citizens or subjects of a foreign state...." 28 U.S.C. § 1332(a). To invoke federal 26 question jurisdiction, the complaint must allege that the "action[] aris[es] under the 27 Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. For example, to state 28 a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing that the defendant, acting
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1 under color of state law, deprived the plaintiff of a right, privilege, or immunity secured by the 2 Constitution or a federal statute. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 3 621, 624 (9th Cir. 1988). 4 The Complaint states: "I, Imelda Garcia, am requesting a restraining order against

5 Christopher Blake West, age 19 going on 20, for the purpose of keeping him away from my 6 daughter, Xadiel Svenitza Zubiate, age 16. Their romantic relationship from two months ago 7 to date, has led to sex and my daughter abusing alcohol and a cocktail of drugs, both of which 8 he provides her with." (Doc. # 1 at 1). 9 The Complaint does not allege a basis for federal court subject-mater jurisdiction. The

10 Civil Cover Sheet accompanying the Complaint states "diversity" and "1983," but the 11 Complaint does not contain allegations sufficient to allege that the requirements of 28 U.S.C. 12 § 1332 (diversity) or 42 U.S.C. § 1983 have been satisfied. The Court concludes that the 13 Complaint must be dismissed for lack of subject matter jurisdiction. 14 15 Appointment of Counsel In light of the Court's sua sponte dismissal of this action, Plaintiffs' request for

16 appointment of counsel is denied as moot. 17 18 CONCLUSION IT IS HEREBY ORDERED that the Motion for Leave to Proceed in Formal Pauperis

19 (Doc. # 2) is GRANTED. The Complaint is DISMISSED without prejudice. No later than 20 THIRTY (30) DAYS from the date of this Order, Plaintiff may file an amended complaint, 21 which shall be entitled, "First Amended Complaint," and which shall sufficiently allege a basis 22 for federal subject matter jurisdiction. If Plaintiff does not file an amended complaint within 23 thirty days, the Court will order this case to be closed. The Motion to Appoint Counsel (Doc. 24 # 3) is DENIED as moot. 25 DATED: May 28, 2010 26 27 28
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WILLIAM Q. HAYES United States District Judge