Ellsworth v. Consolidated City-County Government of Missoula, Montana et al

Filing 9

FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner, and 1 MOTION for Leave to Proceed in forma pauperis. ORDER denying without prejudice 5 MOTION for Order/Judgment, 4 MOTION to Intervene. Motions terminated: 5 MOTION for Order/Judgment, 4 MOTION to Intervene. Signed by Magistrate Judge Jeremiah C. Lynch on 2/8/2016. (TCL, ) Modified on 2/8/2016; copy mailed to Ellsworth (NOS, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MICHAEL DEAN ELLSWORTH, II,

CV 16-8-M-DLC-JCL

Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION

vs.
THE CONSOLIDATED CITY-COUNTY
GOVERNMENT OF MISSOULA,
MONTANA; and UNITED STATES,
Defendant.

I.

Introduction
Plaintiff Michael Ellsworth, II, appearing pro se, filed an application

requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). But
Ellsworth did not sign his application. Therefore, the Court cannot address the
merits of his application.
Instead, the Court deems it appropriate to deny Ellsworth’s application
based on the content and merits of his pleadings filed in this case. “A district
court may deny leave to proceed in forma pauperis at the outset if it appears from
the face of the proposed complaint that the action is frivolous or without merit.”
Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (as amended)
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(quoting Tripati v. First National Bank & Trust, 821 F.2d 1368, 1370 (9th Cir.
1987)).
In accordance with Minetti, the Court will review Ellsworth’s pleadings.
For the reasons discussed, the Court finds his pleadings lack merit and this action
should be dismissed.
II.

Plaintiff’s Allegations
Ellsworth’s complaint filed in this case refers to at least three civil actions

he commenced in the Montana Fourth Judicial District Court, Missoula County,
identified by Cause Numbers DV-14-654, DV-14-752, and DV-14-828. The
referenced civil actions apparently advance claims relating to real property rights
Ellsworth may have, or which he purports to have. Specifically, he alleges federal
questions of law have arisen regarding his “Agriculture and Mineral Entries.”
(Doc. 2 at 1.) In substance, Ellsworth’s pleadings reflect that he is dissatisfied
with decisions of the local governments and authorities of Missoula County and
the City of Missoula which apparently have adversely impacted his real property
rights. And it appears that Ellsworth’s referenced civil cases challenge the actions
and decisions of the local governmental entities and authorities.
Ellsworth’s pleadings are lengthy, incorporate voluminous attachments, and
lack any logical presentation of facts. He recites and refers to numerous legal
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doctrines, principles, legislative enactments, and common laws, but his pleadings
are otherwise incomprehensible in that he does not provide a short and plain
statement of exactly what events and decisions have occurred which are the
predicate grounds for either his civil cases filed in state court, or this action. But
what is clear, however, is that Ellsworth is dissatisfied with the legal rulings in,
and the progress of, his state court cases.
Ellsworth’s pleadings filed in this federal action seek to remove his
referenced state court cases to this federal court. One of his pleadings is his
“Notice of Removal and Petition for Review of Administrative Actions.” (Doc.
3.) In that pleading Ellsworth relies upon the federal removal statutes at 28 U.S.C.
§§ 1441 and 1443, and he specifically requests that this Court commence
necessary procedures to “remove[] the Civil Actions Commenced in State District
Court and assume” jurisdiction over those actions. (Doc. 3 at 2.)
III.

Discussion
Because Ellsworth is proceeding pro se the Court must construe his

pleadings liberally, and they are held “to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See
also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989).
Nonetheless, the federal courts must always consider whether it possesses
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jurisdiction over any particular action presented to it.
Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute[.]... It is to be presumed that a
cause lies outside this limited jurisdiction,... and the burden of establishing
the contrary rests upon the party asserting jurisdiction[.]
Kokkonen v. Guardian Life Ins. of America, 511 U.S. 375, 377 (1994) (citations
omitted). The federal courts are obligated to independently examine their own
jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). Absent
jurisdiction, a case is subject to dismissal. Fed. R. Civ. P. 12(h)(3); Fiedler v.
Clark, 714 F.2d 77, 78-9 (9th Cir. 1983).
Further, a pleading must set forth sufficient allegations to invoke the
jurisdiction of this Court (Fed. R. Civ. P. 8(a)(1))1, and a plaintiff bears the burden
to establish jurisdiction. Farmers Ins. Ex. v. Portage La Prairie Mut. Ins. Co., 907
F.2d 911, 912 (9th Cir. 1990).
Having reviewed all of Ellsworth’s pleadings, even after affording those
pleadings a liberal construction the Court finds his allegations fail to state any
claim on which relief could be granted because Ellsworth improperly seeks to
remove his state court cases to federal court. The removal statutes on which
Ellsworth relies only permit a defendant, not a plaintiff, to remove civil cases from
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Pro se litigants are “bound by the rules of procedure.” Ghazali v. Moran,
46 F.3d 52, 54 (9th Cir. 1995).
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state court to federal court. 28 U.S.C. §§ 1441 and 1443. Thus, there simply
exists no legal authority, under either decisional law or statutory law, which
permits this United States District Court to either accept or effect a removal of any
civil action commenced by Ellsworth in a state court under the procedural
circumstances of Ellsworth’s cases. The Court lacks both legal authority and
jurisdiction to proceed with, and adjudicate, Ellsworth’s proposed removal
pleadings. Thus, this action is subject to dismissal based upon Ellsworth’s failure
to state a claim for relief, and this Court’s lack of jurisdiction over the subject of
his pleadings.
Ordinarily, “[d]ismissal of a pro se complaint without leave to amend is
proper only if it is absolutely clear that the deficiencies of the complaint could not
be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.
2007) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988));
Kendall v. VISA U.S.A., Inc., 518 F.3d 1042, 1051-52 (9th Cir. 2008). Here,
however, in view of Ellsworth’s pleadings seeking an unauthorized removal of his
state court cases, any amendment to his pleadings would be futile and, therefore, it
is unnecessary to give him an opportunity to amend. See Leadsinger, Inc. v. BMG
Music Publishing, 512 F.3d 522, 532 (9th Cir. 2008).

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IV.

Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that

Ellsworth’s application to proceed in forma pauperis be DENIED based on the
lack of merit in his pleadings, and that this action be DISMISSED without
prejudice for failure to state a claim and for lack of jurisdiction.
Further, IT IS HEREBYR ORDERED Ellsworth’s miscellaneous pending
motions are DENIED without prejudice.
The Clerk of Court is directed to immediately forward a copy of this
recommendation to the presiding District Judge as Ellsworth does not have a right
to file objections to this recommendation. Minetti v. Port of Seattle, 152 F.3d
1113, 1114 (9th Cir. 1998).
DATED this 8th day of February, 2016.

Jeremiah C. Lynch
United States Magistrate Judge

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