(PS)Elam v. CEPTS ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NATHANIEL ELAM, SR., No. 2:21–cv–1455–TLN–KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST; AND FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS 14 CEPTS, et al., (ECF Nos. 1, 2.) 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requested leave to proceed in 18 forma pauperis (“IFP”).1 See 28 U.S.C. § 1915 (authorizing the commencement of an action 19 “without prepayment of fees or security” by a person that is unable to pay such fees). Plaintiff’s 20 affidavit makes the required showing, and so plaintiff’s request to proceed IFP is granted. See, 21 e.g., Ketschau v. Byrne, 2019 WL 5266889, *1 (W.D. Wash. Oct. 17, 2019) (noting those 22 generally eligible for IFP status include “persons who are unemployed and dependent on 23 government assistance”). 24 The determination a plaintiff may proceed in forma pauperis does not complete the 25 required inquiry. Under Section 1915, the court must dismiss the case if it determines the 26 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 27 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. Matters disposing of any claims under this framework are to be resolved by the magistrate judge as findings and 28 recommendations. See Local Rule 304. 1 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 2 which relief may be granted, or seeks monetary relief against an immune defendant. Further, 3 federal courts have an independent duty to ensure that federal subject matter jurisdiction exists. 4 See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 5 Legal Standards 6 The court must dismiss a case if, at any time, it determines that it lacks subject matter 7 jurisdiction. Rule 12(h)(3).2 A federal district court generally has original jurisdiction over a 8 civil action when: (1) a federal question is presented in an action “arising under the Constitution, 9 laws, or treaties of the United States” or (2) there is complete diversity of citizenship and the 10 amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). Further, federal courts 11 lack subject matter jurisdiction to consider claims that are “so insubstantial, implausible, 12 foreclosed by prior decisions of this court, or otherwise completely devoid of merit as not to 13 involve a federal controversy.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 14 (1998); Hagans v. Lavine, 415 U.S. 528, 537 (1974) (court lacks subject matter jurisdiction over 15 claims that are “essentially fictitious,” “obviously frivolous” or “obviously without merit”); see 16 also Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549-50 (9th Cir. 2018) (noting 17 that the “wholly insubstantial and frivolous” standard for dismissing claims operates under Rule 18 12(b)(1) for lack of federal question jurisdiction). A claim is legally frivolous when it lacks an 19 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A court 20 may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or 21 where the factual contentions are clearly baseless. Id. at 327; Rule 12(h)(3). 22 A complaint must not contain lengthy introductions, argument, speeches, explanations, 23 stories, griping, evidence, summaries, charts, notes, e-mails, and the like. See McHenry v. 24 Renne, 84 F.3d 1172, 1176-78 (9th Cir. 1996). This limitation is because documentary evidence 25 may be presented at a later point in the case. See Id. 26 /// 27 28 2 Citation to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted. 1 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn.7 2 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 3 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 4 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 5 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 6 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 7 Analysis 8 Here, plaintiff’s complaint is handwritten and barely legible. As best the court can tell, 9 plaintiff alleges that defendants CEPTS, a person named Judie, and plaintiff’s son Nathaniel Elam 10 Jr. have possession of, and are spending, some of his funds. Plaintiff also attaches a copy of his 11 1095-B (showing he maintains health coverage) and, it appears, copies of his phone bills. The 12 remainder of plaintiff’s allegations appear to be vague threats, plaintiff’s wishes concerning the 13 disposition of his estate, and requests for damages and “jail time” for defendants. Plaintiff’s 14 stated basis for federal jurisdiction is “Stoetial – Federal Check/States Checks; Emotional 15 Distress; Medearl (Mediah) distress [sic]”. (See ECF No. 1.) 16 Plaintiff’s complaint, to the extent that it is intelligible, does not remotely allege sufficient 17 facts from which the court can draw a reasonable inference that a federal claim exists. Plaintiff 18 does not identify a particular constitutional right that was purportedly violated, and his stated 19 basis for federal jurisdiction is more akin to state-law claims. See Lawler v. Montblanc N. Am., 20 LLC, 704 F.3d 1235, 1245 (9th Cir. 2013) (reciting the elements of a claim for IIED under 21 California law); see also 28 U.S.C. § 1331. Further, there are no allegations of diversity as per 28 22 U.S.C. Section 1332. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) 23 (noting the burden for establishing diversity jurisdiction is on the party asserting it). The 24 remainder of plaintiff’s complaint either appears frivolous on its face or in violation of Rule 8’s 25 “short and plain statement” requirement. See Neitzke, 490 U.S. at 325 (frivolity); McHenry, 84 26 F.3d at 1176-78 (no griping or evidence). While the court is sympathetic to plaintiff’s plight, 27 such allegations do not suffice to state a federal claim. See 28 U.S.C. § 1367(c) (noting the 28 federal court’s authority to decline supplemental jurisdiction over pure matters of state law). ] For these reasons, the complaint 1s subject to dismissal. Further, the court ordinarily 2 || liberally grants pro se plaintiffs leave to amend. However, because the undersigned finds plaintiff 3 || would be unable to cure the above-mentioned deficiencies through further amendment of the 4 | complaint, granting leave to amend would be futile. Cahill, 80 F.3d at 339. 5 ORDER AND RECOMMENDATIONS 6 Accordingly, IT IS HEREBY ORDERED that plaintiff's IFP application is GRANTED. 7 Further, it is RECOMMENDED that: 8 1. The action be DISMISSED WITHOUT PREJUDICE; and 9 2. The Clerk of Court be directed to CLOSE this case. 10 || These findings and recommendations are submitted to the United States District Judge assigned to 11 || the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after 12 || being served with these findings and recommendations, plaintiff may file written objections with 13 || the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 14 || Recommendations.” Plaintiffis advised that failure to file objections within the specified time 15 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 16 | (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 17 | Dated: August 23, 2021 i Aectl Aharon 19 KENDALL J. NE elam.1455 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28