Christopher v. Reaching Fourth Ministries et al

Filing 3

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. Court sua sponte dismisses Plaintiff's Complaint without prejudice. If Plaintiff wishes to file a First Amended Complaint, he must do so by 4/28/2017. Signed by Judge Cynthia Bashant on 4/14/2017. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 CARREA CHRISTOPHER, Plaintiff, 14 15 16 17 Case No. 17-cv-00726-BAS-BLM ORDER: v. (1) GRANTING MOTION TO PROCEED IFP; REACHING FOURTH MINISTRIES, et al., (2) DISMISSING COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION Defendants. 18 19 20 21 On April 10, 2017, Plaintiff Carrea Christopher, proceeding pro se, 22 commenced this action against Defendants Reaching Fourth Ministries, Buffco 23 Production Oil, Inc., and other defendants, alleging negligence and fraud in 24 connection with the extraction of natural resources from land claimed by Plaintiff. 25 (ECF No. 1.) On the same day, Plaintiff also filed a motion seeking leave to proceed 26 in forma pauperis (“IFP”). (ECF No. 2.) For the reasons discussed below, the Court 27 GRANTS Plaintiff’s motion to proceed IFP, and DISMISSES the Complaint for 28 lack of subject matter jurisdiction. –1– 17cv726 1 I. MOTION TO PROCEED IN FORMA PAUPERIS 2 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay 3 the fees required to commence a legal action may petition a court to proceed without 4 making such payment. The determination of indigency falls within the district court’s 5 discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d 6 on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 typically requires 7 the reviewing court to exercise its sound discretion in determining whether the affiant 8 has satisfied the statute’s requirement of indigency”). “An affidavit in support of an 9 IFP application is sufficient where it alleges that the affiant cannot pay the court costs 10 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 11 (9th Cir. 2015) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 12 (1948)). A plaintiff seeking IFP status “need not be absolutely destitute to obtain 13 benefits of the in forma pauperis statute.” Jefferson v. United States, 277 F.2d 723, 14 725 (9th Cir. 1960). However, he must declare the facts of his poverty “with some 15 particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 16 940 (9th Cir. 1981). 17 Having read and considered Plaintiff’s IFP application, the Court finds that 18 Plaintiff meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is 19 unemployed, and has only $20.00 on hand. (IFP Mot. ¶¶ 2, 4.) His monthly income 20 is limited to the $980.00 he receives in disability, and he has no checking, savings, 21 or other bank account. (Id. ¶¶ 1, 4.) Plaintiff’s monthly expenses total $890.00, 22 including $700.00 for rent. (Id. ¶ 8.) Plaintiff indicates that he does not own an 23 automobile, and has not, in the past twelve months, received any income in the form 24 of interest and dividends, retirement payments, gifts, rental income, or money from 25 other sources besides his monthly disability payment. (Id. ¶¶ 1, 5.) Under these 26 circumstances, the Court finds that requiring Plaintiff to pay the filing fees in this 27 case would impair his ability to meet basic living expenses. See Adkins, 335 U.S. at 28 –2– 17cv726 1 339. Accordingly, the Court GRANTS Plaintiff’s motion to proceed IFP.1 (ECF No. 2 2.) 3 II. DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION 4 A complaint filed by any litigant proceeding IFP is subject to mandatory 5 screening by the court in which the complaint is brought. See 28 U.S.C. § 6 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 7 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). Under § 8 1915(e)(2), the court must dismiss a case if the court determines that the action is 9 frivolous or malicious, fails to state a claim, or seeks monetary relief against persons 10 immune from suit. In addition—and separate from the pre-screening requirements of 11 § 1915(e)—“federal courts have a duty to raise and decide issues of subject matter 12 jurisdiction sua sponte, if at any time it appears that subject matter jurisdiction may 13 be lacking.” Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F. Supp. 2d 980, 984 (N.D. 14 Cal. 2008) (citations omitted). “Where a court lacks subject matter jurisdiction, it 15 must dismiss the complaint in its entirety.” Adames v. Taju, 80 F. Supp. 3d 465, 467 16 (E.D.N.Y. 2015) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). 17 Here, the Court finds it does not have subject matter jurisdiction over the case. 18 Plaintiff invokes diversity jurisdiction on the grounds that the defendants’ negligent 19 and fraudulent conduct occurred in both California and Texas. However, for purposes 20 of diversity jurisdiction, the geographic location of the alleged conduct is irrelevant. 21 To invoke diversity jurisdiction, there must be complete diversity of citizenship 22 between the parties and the amount in controversy must exceed $75,000. See 23 Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806); 28 U.S.C § 1332(a). Complete 24 diversity exists when “the citizenship of each plaintiff is diverse from the citizenship 25 of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). Although 26 27 28 1 Plaintiff is cautioned, however, that if it appears at any time in the future that Plaintiff’s financial picture has improved for any reason, the Court will direct Plaintiff to pay the filing fee to the Clerk of the Court. This includes any recovery Plaintiff may realize from this suit or others, and any assistance Plaintiff may receive from family or the government. –3– 17cv726 1 Plaintiff alleges an amount in controversy greater than $1 million, he makes no 2 allegations regarding the citizenship of the individual and corporate defendants. 3 Indeed, on the face of the complaint, Plaintiff, a citizen of California, intimates that 4 several of the defendants may also be citizens of California. Therefore, Plaintiff has 5 not sufficiently pled diversity jurisdiction. And because there are no other bases of 6 federal jurisdiction proffered by Plaintiff, or otherwise present on the face of the 7 complaint, the Court has no subject matter jurisdiction over this case. The Complaint 8 must be dismissed. Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that 9 it lacks subject-matter jurisdiction, the court must dismiss the action.”). 10 For the foregoing reasons, Plaintiff’s motion to proceed IFP is GRANTED, 11 and his Complaint is sua sponte DISMISSED WITHOUT PREJUDICE for lack 12 of subject matter jurisdiction. If Plaintiff wishes to file a First Amended Complaint, 13 he must do so no later than April 28, 2017. 14 IT IS SO ORDERED. 15 16 DATED: April 14, 2017 17 18 19 20 21 22 23 24 25 26 27 28 –4– 17cv726

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