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 Any amended Complaint must be complete without reference to the superseded pleading.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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Plaintiff, 11 12 Case No.: 17cv1738-MMA (NLS) MARSHA D. SKELLY, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; v. 13 14 15 16 [Doc. No. 2] U.S. DEPARTMENT OF EDUCATION; FEDERAL STUDENT AID COMMISSION; FEDLOAN SERVICING, 17 SUA SPONTE DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2); AND Defendants. 18 DENYING MOTION FOR APPOINTMENT OF COUNSEL 19 20 [Doc. No. 3] 21 22 Plaintiff Marsha D. Skelly, proceeding pro se, has filed the instant action against 23 24 Defendants U.S. Department of Education, Federal Student Aid Commission, and 25 FedLoan Servicing. See Doc. No. 1. Plaintiff also moves for leave to proceed in this 26 action in forma pauperis (“IFP”), and moves for appointment of counsel. See Doc. Nos. 27 2, 3. 28 // 1 17cv1738-MMA (NLS) 1 2 MOTION FOR LEAVE TO PROCEED IFP All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. § 6 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in 7 forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 8 1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v. 9 E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). Plaintiff’s IFP application 10 details her net monthly income and her monthly expenses, with her net monthly expenses 11 exceeding her net monthly income. Based thereon, the Court concludes that Plaintiff 12 should be allowed to proceed IFP pursuant to 28 U.S.C. § 1915(a) because her 13 submission demonstrates that she lacks the financial resources to pay the costs of 14 commencing this action. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 15 Accordingly, the Court GRANTS Plaintiff’s motion to proceed IFP. See Doc. No. 2. 16 SCREENING PURSUANT TO 28 U.S.C. § 1915(E)(2)(B) 17 A. 18 When a plaintiff proceeds IFP, the complaint is subject to mandatory screening and Legal Standard 19 the Court must order the sua sponte dismissal of any case it finds “frivolous, malicious, 20 failing to state a claim upon which relief may be granted, or seeking monetary relief from 21 a defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 22 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are 23 not limited to prisoners.”). “[W]hen determining whether a complaint states a claim, a 24 court must accept as true all allegations of material fact and must construe those facts in 25 the light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 26 2000). In addition, the Court has a duty to liberally construe a pro se plaintiff’s 27 pleadings. See id. In giving liberal interpretation to a pro se complaint, however, the 28 2 17cv1738-MMA (NLS) 1 court may not “supply essential elements of claims that were not initially pled.” See Ivey 2 v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 A complaint should be dismissed for failure to state a claim if, taking all well- 4 pleaded factual allegations as true, it does not contain “enough facts to state a claim to 5 relief that is plausible on its face.” See Coto Settlement v. Eisenberg, 593 F.3d 1031, 6 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). “A claim 7 has facial plausibility when the plaintiff pleads factual content that allows the court to 8 draw the reasonable inference that the defendant is liable for the misconduct alleged.” 9 Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) 10 (citation omitted). 11 B. 12 Plaintiff Marsha Skelly states that she incurred $16,000 in debt by way of federally Analysis 13 guaranteed student loans while she was obtaining a Bachelor of Science degree while in 14 college from 1983 until 1988. Plaintiff states that due to physical ailments, she was 15 rendered unable to work, and applied for social security disability benefits in 1994. She 16 states that she also filed for Chapter 7 Bankruptcy, and some of her debts were 17 discharged as a result of those proceedings. The Complaint also alleges that Plaintiff 18 believed that she was no longer required to make payments on her outstanding student 19 loans, but that the “[United States Department] of Education and Treasury persisted to 20 hound [her] for decades.” See Doc. No. 1. Plaintiff alleges that “treasury offsets began + 21 ended in 2010,” then began again for a period in 2013, and then recently began again in 22 2017. See Doc. No. 1. Plaintiff states that “it is [her] sincere belief that [she is] entitled 23 to forgiveness of this debt due to extreme financial hardship.” See Doc. No. 1. Plaintiff 24 requests that the Court enjoin any future attempts at collecting Plaintiff’s debt and order 25 full reimbursement and refund of certain treasury offsets which were “involuntarily 26 collected from [Plaintiff’s] social security benefits and IRS refunds.” See Doc. No. 1. 27 28 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 3 17cv1738-MMA (NLS) 1 circumstances described in her Complaint, and Plaintiff does not cite to any. Further, 2 Plaintiff’s Complaint lacks a cognizable legal theory of liability or right to relief. 3 Plaintiff only seeks injunctive relief. “As a general matter, ‘declaratory and injunctive 4 relief are not causes of action; rather, they are remedies.’” Mendez v. Selene Fin. LP, No. 5 216CV09335ODWFFM, 2017 WL 1535085, at *5 (C.D. Cal. Apr. 27, 2017) (quoting 6 Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 975 (N.D. Cal. 2010)); 7 see also Tater-Alexander v. Cty. of Fresno, No. 1:10CV01050-AWI-SMS, 2010 WL 8 2555185, at *3 (E.D. Cal. June 18, 2010) (stating that a request for injunctive relief “is 9 not a cause of action but a form of relief to which Plaintiff may be entitled based on his 10 11 establishing one or more cognizable claims”). Moreover, Plaintiff’s complaint does not adequately provide a basis for the Court’s 12 subject matter jurisdiction over this action. Because federal courts are courts of limited 13 jurisdiction, it is presumed that federal courts do not have jurisdiction unless the party 14 asserting jurisdiction demonstrates otherwise. Kokkonen v. Guardian Life Ins. Co. of 15 Am., 511 U.S. 375, 377 (1994). Without subject matter jurisdiction, a federal court is 16 without “power” to hear or adjudicate a claim. See Leeson v. Transamerica Disability 17 Income Plan, 671 F.3d 969, 975 (9th Cir. 2012) (citing Steel Co. v. Citizens for a Better 18 Environment, 523 U.S. 83, 89 (1998)); Kokkonen, 511 U.S. at 377. For this reason, 19 “[w]hen a federal court concludes that it lacks subject matter jurisdiction, the court must 20 dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). 21 Generally, subject matter jurisdiction is based on the presence of a federal 22 question, see 28 U.S.C. § 1331, or on complete diversity of citizenship between the 23 parties, see 28 U.S.C. § 1332. A federal question is one “arising under the Constitution, 24 laws, or treaties of the United States.” 28 U.S.C. § 1331. Under the well-pleaded 25 complaint rule, the existence of a federal question must appear “on the face of the 26 plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 27 (1987). Diversity jurisdiction exists where a plaintiff has pled (1) the amount in 28 controversy exceeds $75,000, and (2) no plaintiff is a citizen of the same state as any 4 17cv1738-MMA (NLS) 1 defendant. See 28 U.S.C. § 1332. Plaintiff’s Complaint does not indicate that the Court 2 has federal question jurisdiction over this action because it does not delineate any 3 cognizable causes of action. Also, the Complaint does not indicate that the Court would 4 have diversity jurisdiction over this action, as Plaintiff only seeks reimbursement of 5 approximately $7,000, and her original debt amounted to $16,000. 6 Lastly, the United States may not be sued unless it has waived its sovereign 7 immunity. See Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). 8 “Sovereign immunity is an important limitation on the subject matter jurisdiction of 9 federal courts.” Id. Courts may not imply the government’s waiver; rather, the 10 government must have unequivocally expressed it. United States v. Mitchell, 445 U.S. 11 535, 538 (1980). The Complaint does not indicate that the United States has waived its 12 sovereign immunity in these circumstances. 13 14 As such, despite liberally construing Plaintiff’s pleadings, the Court finds Plaintiff fails to state a claim for relief. 15 CONCLUSION 16 Based on the foregoing, the Court: 17 1. GRANTS Plaintiff’s motion to proceed IFP; 18 2. DISMISSES Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 19 20 21 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. 22 The Court further ORDERS that Plaintiff file an amended complaint, if any, on or before 23 September 18, 2017. Any amended Complaint must be complete without reference to 24 the superseded pleading. See S.D. Cal. Civ. L.R. 15.1(a). IT IS SO ORDERED. 25 26 27 DATE: August 31, 2017 ___________________________________ HON. MICHAEL M. ANELLO United States District Judge 28 5 17cv1738-MMA (NLS)

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