Lea et al v. Mid City Division Police Department et al

Filing 3

ORDER: (1) granting #2 Plaintiff's Motion for Leave to Proceed in forma pauperis; and (2) Dismissing action without prejudice. Signed by District Judge Ruth Bermudez Montenegro on 07/29/2022. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KIMBERLINA LEA,

Case No.: 3:22-cv-01003-RBM-WVG
Plaintiff,

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v.

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MID CITY DIVISION POLICE
DEPARTMENT, et al.,

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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS
(Doc. 2); and

Defendants.

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(2) DISMISSING ACTION
WITHOUT PREJUDICE

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On July 11, 2022, Plaintiff Kimberlina Lea (“Plaintiff”) filed a complaint against the

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Mid City Division Police Department, and Officers Joshua Clabough, Ace Ybanez, Jason

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Gonzalez, Kevin Cummings, Miles McCardle, David Burns, and Joshua Leiber.

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(“Defendants”). (Doc. 1.) Plaintiff did not pay the required filing fee and instead filed a

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motion to proceed in forma pauperis (“IFP Motion”). (Doc. 2.) For the reasons outlined

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below, the Court GRANTS Plaintiff’s IFP Motion, and DISMISSES WITHOUT

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PREJUDICE the action.

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3:22-cv-01003-RBM-WVG

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I.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

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All parties instituting a civil action in a district court of the United States, except an

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application for a writ of habeas corpus, must pay a filing fee of $402. See 28 U.S.C.

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§ 1914(a); CivLR 4.5(a). Under 28 U.S.C. § 1915, however, a litigant who because of

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indigency is unable to pay the required fees or security to commence a legal action may

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petition the court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). “An

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affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot

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pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d

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1226, 1234 (9th Cir. 2015). The facts of an affidavit of poverty must be stated “with some

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particularity, definiteness and certainty.” Id. (quoting United States v. McQuade, 647 F.2d

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938, 940 (9th Cir. 1981)). The determination of indigency falls within the district court’s

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discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on

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other grounds, 506 U.S. 194 (1993).

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Here, Plaintiff states that she is unable to pay the costs of these proceedings. (Doc.

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2 at 1.) Plaintiff and her spouse are currently unemployed, and Plaintiff receives income

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in the amount of $1,400 per month from EBT food assistance payments. (Id. at 4.)

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Plaintiff’s Complaint alleges she has received income from Temporary Assistance for

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Needy Families (TANF) within the last 12 months, but the amount of this assistance is not

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specified in the pending IFP Motion. (Doc. 1 at 6.) Plaintiff and her spouse have no assets

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in any checking or savings accounts. (Doc. 2 at 2.) The only asset Plaintiff owns is a 2005

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Cadillac Escalade valued at $5,000. (Id. at 3.) Plaintiff’s monthly expenses for rent, food,

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transportation, and renter’s insurance total $3,857. (Id. at 4.) Plaintiff has three dependents

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who rely on her or her spouse for support. (Id. at 3.) After considering Plaintiff’s

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application, the Court determines that Plaintiff cannot afford to pay the filing fee in this

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case and is eligible to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).

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Accordingly, Plaintiff’s IFP Motion is GRANTED.

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3:22-cv-01003-RBM-WVG

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II.

SCREENING

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A complaint filed by a plaintiff proceeding IFP is subject to screening under 28

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U.S.C. § 1915(e)(2). Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam).

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This statute requires the court “to dismiss the case at any time if the court determines that

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. . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which

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relief may be granted; or (iii) seeks monetary relief against a defendant who is immune

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from such relief.” 28 U.S.C. § 1915(e)(2).

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A. Rule 8 Standard of Review

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A complaint fails to state a claim for relief if it does not satisfy Federal Rule of Civil

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Procedure (“Rule”) 8(a). Rule 8(a) requires: “(1) a short and plain statement of the grounds

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for the court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that

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the pleader is entitled to relief; and (3) a demand for the relief sought, which may include

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relief in the alternative or different types of relief.” FED. R. CIV. PRO. 8(a)(1)–(3); see also

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Rivera v. First Student, No. 18-CV-04033 NC, 2018 WL 10468016, at *2 (N.D. Cal. July

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27, 2018). If a complaint does not meet these requirements, it is subject to dismissal. See,

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e.g., McHenry v. Renne, 84 F.3d 1172, 1177–78 (9th Cir. 1996) (affirming dismissal of a

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third amended complaint that was “argumentative, prolix, replete with redundancy, and

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largely irrelevant”); Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985)

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(affirming dismissal of complaints that “were confusing and conclusory and not in

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compliance with Rule 8”).

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Rule 8(d)(1) requires that each allegation in the complaint be “simple, concise, and

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direct.” FED. R. CIV. PRO. 8(d)(1). Rule 8 ensures that each defendant has “fair notice of

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what the plaintiff’s claim is and the grounds upon which it rests.” Dura Pharms., Inc. v.

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Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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This rule “applies to good claims as well as bad,” and it is a reason for dismissing a

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complaint that is independent of Federal Rule of Civil Procedure 12(b)(6). McHenry, 84

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F.3d at 1179.

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B. Discussion

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Having reviewed Plaintiff’s Complaint, the Court finds that it fails to comply with

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Rule 8 in a number of regards.

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First, Plaintiff has not included “a short and plain statement of the grounds for the

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court’s jurisdiction.” FED. R. CIV. PRO. 8(a)(1). A plaintiff bears the burden of establishing

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“subject matter jurisdiction.” This jurisdiction can arise in two ways: (1) as “federal

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question” jurisdiction under 28 U.S.C. § 1331; or (2) as “diversity of citizenship”

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jurisdiction” under 28 U.S.C. § 1332. Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006).

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Under federal question jurisdiction, “courts shall have original jurisdiction of all civil

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actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §

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1331. Under diversity jurisdiction, each plaintiff must be a citizen of a different state than

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each of the defendants, and the “amount in controversy” must exceed $75,000. 28 U.S.C.

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§ 1332(a); see, e.g., Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). A plaintiff can allege

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the “citizenship” of individuals by stating where the individual is “domiciled,” or where

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they permanently reside.

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incorporated or has its principal place of business.

The citizenship of a corporation is where the entity is

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Plaintiff’s Complaint itself fails to mention the grounds for the Court’s jurisdiction.

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(See Doc. 1.) While the civil cover sheet Plaintiff filed states diversity jurisdiction as the

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basis for the Court’s jurisdiction (Doc. 1-1), the Court notes a discrepancy regarding

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Plaintiff’s place of domicile. While Plaintiff’s Complaint includes a home address for

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Plaintiff in Henderson, Nevada (see Doc. 1 at 1), Plaintiff’s civil cover sheet notes that

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Plaintiff is a citizen both of this state (California) and of another state (Nevada). (See Doc.

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1-1.) “A person’s domicile is her permanent home, where she resides with the intention to

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remain or to which she intends to return.” Kanter v. Warner–Lambert Co., 265 F.3d 853,

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857 (9th Cir. 2001) (citing Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986)). Additionally,

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a person “may have only one domicile at a time.” Gaudin v. Remis, 379 F.3d 631, 636 (9th

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Cir. 2004). Accordingly, the Court is unable at this time to determine if it can exercise

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diversity jurisdiction over this case.

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3:22-cv-01003-RBM-WVG

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Second, Plaintiff has not included “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” FED. R. CIV. PRO. 8(a)(2). Plaintiff’s Complaint

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alleges officers of the Mid City Police Department shot and killed her father, Richard Price,

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in July 2020. (Doc. 1 at 2.) Plaintiff notes her father was carrying an “airsoft pellet gun

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which is legal.” (Id.) Plaintiff further alleges that the police officers used “excessive force”

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in an altercation with her father despite the officers’ knowledge that Mr. Price was “under

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the influence,” and that in doing so, Mr. Price’s civil rights were violated. (Id.) 1 Based on

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these allegations, it appears Plaintiff intended to file claims pursuant to 42 U.S.C. § 1983

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against the Defendants related to her father’s death. See Devereaux v. Abbey, 263 F.3d

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1070, 1074 (9th Cir. 2001) (“Section 1983 creates a private right of action against

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individuals who, acting under color of state law, violate federal constitutional or statutory

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rights.”). Plaintiff has not included, however, any statement of the specific claims she is

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bringing against each of the Defendants. Additionally, to the extent Plaintiff is bringing

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Section 1983 claims against Defendants, it appears the basis for the Court’s jurisdiction

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would be federal question jurisdiction, not diversity jurisdiction as Plaintiff indicated on

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the civil cover sheet.

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Given Plaintiff’s failure to state both the grounds for the Court’s jurisdiction over

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this dispute, as well as the specific claims she is bringing against each of the Defendants,

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the Court finds that Plaintiff has not complied with the pleading requirements in Rule 8.

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Accordingly, the Court finds dismissal appropriate under Rule 8 and 28 U.S.C. §

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1915(e)(2)(ii).

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The Court notes that a page appears to be missing from Plaintiff’s Complaint, or a portion
of the Complaint appears to be cut off, as page 2 ends by stating “I AND MY ATTORNEY
WILL . . .” and page 3 begins by stating “LOOSE. AND HE WAS TERRIFIED . . .” (See
Doc. 1 at 2–3.)
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3:22-cv-01003-RBM-WVG

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III.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED:

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2. Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE pursuant to

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28 U.S.C. § 1915(e)(2)(ii). Plaintiff is granted leave to amend her pleading to cure the

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deficiencies identified above by September 12, 2022. The Court cautions that if Plaintiff

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fails to file an amended complaint or request an extension of time to do so by this date, this

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action will be dismissed.

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Plaintiff’s IFP Motion is GRANTED.

IT IS SO ORDERED.
DATE: July 29, 2022
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HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE

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3:22-cv-01003-RBM-WVG