In Re Porter

Filing 3

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Joseph Porter, FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by Joseph Porter. (), Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by Joseph Porter. Signed by Magistrate Judge Jeremiah C. Lynch on 9/30/2016. (TCL, ) Modified on 9/30/2016: mailed to Porter (TAG, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JOSEPH PORTER,

CV 16-128-M-DLC-JCL
Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION

vs.

[UNIDENTIFIED DEFENDANT],
Defendant.

I.

Introduction
Plaintiff Joseph Porter, proceeding pro se, filed a Motion to Proceed In

Forma Pauperis. Porter submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute
this action IT IS HEREBY ORDERED that Porter’s Motion to Proceed In Forma
Pauperis is GRANTED. This action may proceed without prepayment of the
filing fee, and the Clerk of Court is directed to file Porter’s lodged pleading as of
the filing date of her request to proceed in forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
1

screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court will review Porter’s pleading to consider whether this action can
survive dismissal under the provisions of section 1915(e)(2), or any other
provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th
Cir. 2005).
II.

Plaintiff’s Allegations
Plaintiff Joseph Porter filed a pleading requesting the Court order the

release of confidential criminal justice information. Specifically, he identifies a
police report, and 911 calls he and another person made on April 9, 2016. Porter’s

2

petition – a pre-printed form document used for filing in the courts of the State of
Montana – cites to Mont. Code Ann. § 44-5-303(6) as the legal authority for his
request for release of the information. Porter does not name a defendant in this
action, he cites to no other legal authority for his requested relief, and he advances
no other legal claim for relief.
III.

Discussion
Because Porter is proceeding pro se the Court must construe his pleading

liberally, and the pleading is 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). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
For the reasons discussed, the Court concludes Porter’s pleading is subject
to dismissal as this Court does not have jurisdiction over his claims.
In federal court, a plaintiff’s pleading must set forth sufficient allegations to

3

invoke the jurisdiction of this Court. Fed. R. Civ. P. 8(a)(1).1
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). 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). Absent
jurisdiction, a case is subject to dismissal. Fed. R. Civ. P. 12(h)(3).
Furthermore, the federal courts are obligated to independently examine their
own jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). And
a district court may dismiss an action sua sponte whenever it appears that
jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3); Fiedler v. Clark, 714 F.2d 77, 789 (9th Cir. 1983).
A federal court’s jurisdiction is generally limited to cases involving
diversity of citizenship (28 U.S.C. § 1332), a federal question (28 U.S.C. § 1331),
or cases in which the United States is a party (28 U.S.C. §§ 1345 and 1346).
Sections 1345 and 1346 are not applicable in this case because the United States is
not a party to this action.
1

Pro se litigants are “bound by the rules of procedure.” Ghazali v. Moran,
46 F.3d 52, 54 (9th Cir. 1995).
4

Federal question jurisdiction requires that a plaintiff’s civil action must arise
“under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
As pled, Porter’s pleading fails to set forth any basis for federal question
jurisdiction under 28 U.S.C. § 1331. His pleading does not expressly plead any
cause of action arising under any specific provision of the United States
Constitution, or the laws or treaties of the United States. Instead, Porter cites only
to a provision of Montana law permitting an individual to commence an action for
the release of confidential criminal justice information. Mont. Code Ann. § 44-5303(6). Absent federal question jurisdiction, that action cannot be filed in a
United States District Court.
Alternatively, the district courts have jurisdiction over “civil actions where
the matter in controversy exceeds the sum or value of $75,000[,]” and the civil
action is between citizens of different States. 28 U.S.C. § 1332(a); Geographic
Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010).
Diversity jurisdiction requires complete diversity of citizenship between the
plaintiffs and each defendant. Williams v. United Airlines, Inc., 500 F.3d 1019,
1025 (9th Cir. 2007) (citing Exxon Mobil Corp. v. Allapattah Services, Inc., 545
U.S. 546, 553 (2005)). The plaintiff must be a citizen of a different state than each
of the defendants, and those facts must be affirmatively pled in the complaint.
5

Morris v. Princess Cruises, Inc. 236 F.3d 1061, 1067 (9th Cir. 2001).
Here, Porter does not identify his state citizenship. And he neither identifies
a named defendant, nor the citizenship of any potential defendant. Therefore,
Porter’s allegations do not affirmatively establish diversity of citizenship exists in
this case.
Based on the foregoing, Porter has failed to plead any factual basis for, or
legal claims on which, this Court’s jurisdiction can be founded. Furthermore,
under the circumstances of the factual allegations pled – a case involving a request
for release of state criminal justice information – the Court finds Porter could not
cure the jurisdictional defects in his pleading through the addition of further facts
or claims. Therefore, IT IS HEREBY RECOMMENDED that this action be
DISMISSED for lack of jurisdiction.
DATED this 30th day of September, 2016.

Jeremiah C. Lynch
United States Magistrate Judge

6