Skelly v. U.S. Department of Education et al

Filing 4

ORDER Granting Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis; Sua Sponte Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2); and Denying 3 Motion for Appointment of Counsel. The Court Orders that Plaintiff file an amended complaint, if any, on or before 9/18/2017. Any amended Complaint must be complete without reference to the superseded pleading. Signed by Judge Michael M. Anello on 8/31/2017. (All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No.: 17cv1738-MMA (NLS)

MARSHA D. SKELLY,

ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS;

v.

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[Doc. No. 2]

U.S. DEPARTMENT OF EDUCATION;
FEDERAL STUDENT AID
COMMISSION; FEDLOAN
SERVICING,

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SUA SPONTE DISMISSING CIVIL
ACTION FOR FAILING TO STATE
A CLAIM PURSUANT TO 28 U.S.C.
§ 1915(e)(2); AND

Defendants.

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DENYING MOTION FOR
APPOINTMENT OF COUNSEL

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[Doc. No. 3]

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Plaintiff Marsha D. Skelly, proceeding pro se, has filed the instant action against

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Defendants U.S. Department of Education, Federal Student Aid Commission, and

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FedLoan Servicing. See Doc. No. 1. Plaintiff also moves for leave to proceed in this

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action in forma pauperis (“IFP”), and moves for appointment of counsel. See Doc. Nos.

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2, 3.

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17cv1738-MMA (NLS)

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MOTION FOR LEAVE TO PROCEED IFP
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. §

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1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in

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forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

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1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v.

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E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). Plaintiff’s IFP application

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details her net monthly income and her monthly expenses, with her net monthly expenses

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exceeding her net monthly income. Based thereon, the Court concludes that Plaintiff

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should be allowed to proceed IFP pursuant to 28 U.S.C. § 1915(a) because her

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submission demonstrates that she lacks the financial resources to pay the costs of

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commencing this action. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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Accordingly, the Court GRANTS Plaintiff’s motion to proceed IFP. See Doc. No. 2.

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SCREENING PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)

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A.

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When a plaintiff proceeds IFP, the complaint is subject to mandatory screening and

Legal Standard

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the Court must order the sua sponte dismissal of any case it finds “frivolous, malicious,

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failing to state a claim upon which relief may be granted, or seeking monetary relief from

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a defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl,

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254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are

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not limited to prisoners.”). “[W]hen determining whether a complaint states a claim, a

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court must accept as true all allegations of material fact and must construe those facts in

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the light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

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2000). In addition, the Court has a duty to liberally construe a pro se plaintiff’s

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pleadings. See id. In giving liberal interpretation to a pro se complaint, however, the

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17cv1738-MMA (NLS)

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court may not “supply essential elements of claims that were not initially pled.” See Ivey

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v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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A complaint should be dismissed for failure to state a claim if, taking all well-

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pleaded factual allegations as true, it does not contain “enough facts to state a claim to

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relief that is plausible on its face.” See Coto Settlement v. Eisenberg, 593 F.3d 1031,

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1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010)

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(citation omitted).

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B.

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Plaintiff Marsha Skelly states that she incurred $16,000 in debt by way of federally

Analysis

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guaranteed student loans while she was obtaining a Bachelor of Science degree while in

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college from 1983 until 1988. Plaintiff states that due to physical ailments, she was

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rendered unable to work, and applied for social security disability benefits in 1994. She

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states that she also filed for Chapter 7 Bankruptcy, and some of her debts were

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discharged as a result of those proceedings. The Complaint also alleges that Plaintiff

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believed that she was no longer required to make payments on her outstanding student

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loans, but that the “[United States Department] of Education and Treasury persisted to

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hound [her] for decades.” See Doc. No. 1. Plaintiff alleges that “treasury offsets began +

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ended in 2010,” then began again for a period in 2013, and then recently began again in

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2017. See Doc. No. 1. Plaintiff states that “it is [her] sincere belief that [she is] entitled

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to forgiveness of this debt due to extreme financial hardship.” See Doc. No. 1. Plaintiff

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requests that the Court enjoin any future attempts at collecting Plaintiff’s debt and order

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full reimbursement and refund of certain treasury offsets which were “involuntarily

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collected from [Plaintiff’s] social security benefits and IRS refunds.” See Doc. No. 1.

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While the Court is sympathetic to Plaintiff’s circumstances, the Court is unaware
of any authority that would allow the Court to forgive Plaintiff’s debts under the
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17cv1738-MMA (NLS)

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circumstances described in her Complaint, and Plaintiff does not cite to any. Further,

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Plaintiff’s Complaint lacks a cognizable legal theory of liability or right to relief.

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Plaintiff only seeks injunctive relief. “As a general matter, ‘declaratory and injunctive

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relief are not causes of action; rather, they are remedies.’” Mendez v. Selene Fin. LP, No.

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216CV09335ODWFFM, 2017 WL 1535085, at *5 (C.D. Cal. Apr. 27, 2017) (quoting

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Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 975 (N.D. Cal. 2010));

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see also Tater-Alexander v. Cty. of Fresno, No. 1:10CV01050-AWI-SMS, 2010 WL

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2555185, at *3 (E.D. Cal. June 18, 2010) (stating that a request for injunctive relief “is

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not a cause of action but a form of relief to which Plaintiff may be entitled based on his

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establishing one or more cognizable claims”).
Moreover, Plaintiff’s complaint does not adequately provide a basis for the Court’s

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subject matter jurisdiction over this action. Because federal courts are courts of limited

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jurisdiction, it is presumed that federal courts do not have jurisdiction unless the party

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asserting jurisdiction demonstrates otherwise. Kokkonen v. Guardian Life Ins. Co. of

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Am., 511 U.S. 375, 377 (1994). Without subject matter jurisdiction, a federal court is

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without “power” to hear or adjudicate a claim. See Leeson v. Transamerica Disability

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Income Plan, 671 F.3d 969, 975 (9th Cir. 2012) (citing Steel Co. v. Citizens for a Better

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Environment, 523 U.S. 83, 89 (1998)); Kokkonen, 511 U.S. at 377. For this reason,

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“[w]hen a federal court concludes that it lacks subject matter jurisdiction, the court must

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dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

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Generally, subject matter jurisdiction is based on the presence of a federal

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question, see 28 U.S.C. § 1331, or on complete diversity of citizenship between the

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parties, see 28 U.S.C. § 1332. A federal question is one “arising under the Constitution,

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laws, or treaties of the United States.” 28 U.S.C. § 1331. Under the well-pleaded

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complaint rule, the existence of a federal question must appear “on the face of the

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plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392

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(1987). Diversity jurisdiction exists where a plaintiff has pled (1) the amount in

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controversy exceeds $75,000, and (2) no plaintiff is a citizen of the same state as any
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17cv1738-MMA (NLS)

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defendant. See 28 U.S.C. § 1332. Plaintiff’s Complaint does not indicate that the Court

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has federal question jurisdiction over this action because it does not delineate any

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cognizable causes of action. Also, the Complaint does not indicate that the Court would

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have diversity jurisdiction over this action, as Plaintiff only seeks reimbursement of

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approximately $7,000, and her original debt amounted to $16,000.

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Lastly, the United States may not be sued unless it has waived its sovereign

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immunity. See Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006).

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“Sovereign immunity is an important limitation on the subject matter jurisdiction of

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federal courts.” Id. Courts may not imply the government’s waiver; rather, the

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government must have unequivocally expressed it. United States v. Mitchell, 445 U.S.

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535, 538 (1980). The Complaint does not indicate that the United States has waived its

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sovereign immunity in these circumstances.

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As such, despite liberally construing Plaintiff’s pleadings, the Court finds Plaintiff
fails to state a claim for relief.

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CONCLUSION

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Based on the foregoing, the Court:

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1. GRANTS Plaintiff’s motion to proceed IFP;

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2. DISMISSES Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure

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12(h)(3) and 28 U.S.C. § 1915(e)(2)(B) as set forth above;
3. DENIES Plaintiff’s motion for appointment of counsel as moot and without
prejudice.

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The Court further ORDERS that Plaintiff file an amended complaint, if any, on or before

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September 18, 2017. Any amended Complaint must be complete without reference to

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the superseded pleading. See S.D. Cal. Civ. L.R. 15.1(a). IT IS SO ORDERED.

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DATE: August 31, 2017

___________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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17cv1738-MMA (NLS)