(PS) Gigena v. Baker ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GABRIEL GIGENA, No. 2:22–cv–206–TLN–KJN PS 12 Plaintiff, ORDER GRANTING IFP STATUS; FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS 14 DONALD BAKER, (ECF No. 2.) 15 Defendant. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 DISCUSSION 2 A federal district court generally has original jurisdiction over a civil action when: (1) a 3 federal question is presented in an action “arising under the Constitution, laws, or treaties of the 4 United States” or (2) there is complete diversity of citizenship and the amount in controversy 5 exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). However, federal courts lack subject matter 6 jurisdiction to consider claims that are “so insubstantial, implausible, foreclosed by prior 7 decisions of this court, or otherwise completely devoid of merit as not to involve a federal 8 controversy.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998); Hagans v. 9 Lavine, 415 U.S. 528, 537 (1974) (court lacks subject matter jurisdiction over claims that are 10 “essentially fictitious,” “obviously frivolous” or “obviously without merit”); see also Grancare, 11 LLC v. Thrower by & through Mills, 889 F.3d 543, 549-50 (9th Cir. 2018) (noting that the 12 “wholly insubstantial and frivolous” standard for dismissing claims operates under Rule 12(b)(1) 13 for lack of federal question jurisdiction). A claim is legally frivolous when it lacks an arguable 14 basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A court may 15 dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where 16 the factual contentions are clearly baseless. Id. at 327; see also Fed. R. Civ. P. 12(h)(3) (noting a 17 court must dismiss a case if, at any time, it determines that it lacks subject matter jurisdiction). 18 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 19 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 20 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 21 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 22 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 23 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 24 Here, plaintiff filed suit against Donald Baker, U.S. Supreme Court Clerk’s Assistant, 25 alleging defendant erroneously rejected plaintiff’s amicus curiae brief because plaintiff is not an 26 attorney admitted to practice before the Supreme Court. Plaintiff requests this court order 27 defendant to have the brief filed. (See ECF No. 1.) 28 /// ] Plaintiff's request is meritless. Under the “Rules Enabling Act,” the U.S. Supreme Court 2 | has the authority to “prescribe rules for the conduct of their business.” 28 U.S.C. § 2071(a). Rule 3 || 1 the Supreme Court’s Rules grants the Clerk of the Supreme Court the authority to reject any 4 | filing that does not comport with its rules. Rule 37.1 of the Supreme Court rules explains “[a]n 5 || amicus curiae brief may be filed only by an attorney admitted to practice before this Court as 6 || provided in Rule 5.” A federal court in the Eastern District of California has no authority to order 7 | otherwise, and so plaintiffs case is frivolous. See Neitzke, 490 U.S. at 327. Because plaintiff 8 || would be unable to cure the above-mentioned deficiencies through further amendment of the 9 || complaint, granting leave to amend would be futile. Cahill, 80 F.3d at 339. 10 ORDER AND RECOMMENDATIONS 11 Accordingly, IT IS HEREBY ORDERED plaintiff’s IFP motion (ECF No. 2) is 12 | GRANTED. Further, IT IS HEREBY RECOMMENDED that: 13 1. The action be DISMISSED as frivolous; and 14 2. The Clerk of Court be directed to CLOSE this case. 15 || These findings and recommendations are submitted to the United States District Judge assigned to 16 || the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after 17 || being served with these findings and recommendations, plaintiff may file written objections with 18 || the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 19 || Recommendations.” Plaintiffis advised that failure to file objections within the specified time 20 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 21 | (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 22 || Dated: February 9, 2022 Aectl Aharon 24 KENDALL J. NE give.206 UNITED STATES MAGISTRATE JUDGE 25 26 27 28