(PS)Alfaro Brittany v. Roanasios ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHALLA C. ALFARO BRITTANY, No. 2:19-cv-2064-JAM-KJN PS 12 Plaintiff, ORDER GRANTING IFP AND DISMISSING WITH LEAVE TO AMEND 13 v. (ECF Nos. 1, 2) 14 DONNA S. ROANASIOS, 15 Defendant. 16 17 Plaintiff Michalla Brittany, who is proceeding without counsel in this action, has 18 requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) 19 Plaintiff’s application in support of her request to proceed in forma pauperis makes the showing 20 required by 28 U.S.C. § 1915. Accordingly, the Court grants Plaintiff’s request to proceed in 21 forma pauperis. 22 The determination that a plaintiff may proceed in forma pauperis does not complete the 23 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any 24 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 26 an immune defendant. 27 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 28 636(b)(1). 1 Legal Standard 2 A federal court has an independent duty to assess whether federal subject matter 3 jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. 4 Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004); accord Rains v. Criterion Sys., Inc., 80 5 F.3d 339, 342 (9th Cir. 1996). The court must sua sponte dismiss the case if, at any time, it 6 determines that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). 7 “Under the substantiality doctrine, the district court lacks subject matter jurisdiction when 8 the question presented is too insubstantial to consider.” Cook v. Peter Kiewit Sons Co., 775 F.2d 9 1030, 1035 (9th Cir. 1985) (citing Hagans v. Lavine, 415 U.S. 528, 536-39 (1974)). “The claim 10 must be ‘so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise 11 completely devoid of merit as not to involve a federal controversy within the jurisdiction of the 12 District Court, whatever may be the ultimate resolution of the federal issues on the merits.’” Id. 13 (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)); see also Apple v. 14 Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (“a district court may, at any time, sua sponte dismiss a 15 complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of 16 Civil Procedure when the allegations of a complaint are totally implausible, attenuated, 17 insubstantial, frivolous, devoid of merit, or no longer open to discussion.”). 18 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 19 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear 20 that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma 21 pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll v. 22 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) superseded on other grounds by statute as stated in 23 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc); Franklin v. Murphy, 745 F.2d 1221, 24 1230 (9th Cir. 1984). 25 Analysis 26 Here, Plaintiff submitted a form civil complaint, checking the box for “federal question” 27 jurisdiction. (ECF No. 1 at p. 3.) However, the information she provided in this Complaint does 28 not appear to implicate a particular federal question. Plaintiff lists as a basis for federal question 1 jurisdiction “sponership [sic] civil rights act [and] other product liability.” (Id. at p. 4.) For her 2 statement of claim, Plaintiff asserts: “Defendant was a sponsership [sic] to some of my children 3 and can no longer sponer [sic] me or my children. Their’s [sic] is no arguement [sic]].” (Id. at p. 4 5.) Plaintiff also states that Defendant allegedly told her she owes $375,000 for being “behind,” 5 but that “I thought I already paid with court money and state of California.” (Id. at p. 4.) The 6 Court is unsure what civil rights act Plaintiff is referring to, and any product liability claims 7 would arise under state law. Further, the Court is unsure of who Defendant is, the circumstances 8 or legal basis surrounding a sponsorship for her or her children, or any other details about her 9 situation. The Complaint, as it exists now, is insubstantial and potentially frivolous, and does not 10 implicate federal subject matter jurisdiction. Cook, 775 F.2d at 1035. 11 In light of plaintiff’s pro se status, and because it is at least conceivable that Plaintiff can 12 allege some claim, the court finds it appropriate to grant plaintiff an opportunity to amend the 13 complaint. If plaintiff elects to file an amended complaint, it shall be captioned “First Amended 14 Complaint,” shall be typed or written in legible handwriting, shall address the deficiencies 15 outlined in this order, and shall be filed within 21 days of this order. 16 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 17 to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended 18 complaint be complete in itself without reference to any prior pleading. As a general rule, an 19 amended complaint supersedes the original complaint, and once the first amended complaint is 20 filed, the original complaint no longer serves any function in the case. 21 Further, for a complaint to meet the Federal Rules of Civil Procedure, it must contain a 22 short and plain statement of the grounds for the court’s jurisdiction. Fed. R. Civ. P. 8. For 23 federal question jurisdiction, it must be clear from the face of the complaint that a particular 24 provision of the U.S. Constitution or a particular federal law is implicated. See 28 U.S.C. § 1331. 25 A complaint must contain more than “naked assertions,” “labels and conclusions,” or “a 26 formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 27 544, 555-57 (2007). It must contain sufficient factual matter, accepted as true, to ‘state a claim to 28 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 1 |} 550 US. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that 2 | allows the court to draw the reasonable inference that the defendant is liable for the misconduct 3 | alleged.” Id. 4 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 5 | plaintiff determines that she is unable to amend the Complaint in compliance with the Court’s 6 | order at this juncture, she may alternatively file a notice of voluntary dismissal of her claims 7 | without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)G) within 21 days of 8 || this order. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is GRANTED; 11 2. Plaintiff's complaint is DISMISSED, but with leave to amend; 12 3. Within 21 days of this order, Plaintiff shall file either (a) a first amended complaint in 13 accordance with this order, or (b) a notice of voluntary dismissal of the action without 14 prejudice; and 15 4. Failure to file either a first amended complaint or a notice of voluntary dismissal by 16 the required deadline may result in the imposition of sanctions, including potential 17 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 18 A1(b). 19 IT IS SO ORDERED. 20 || Dated: October 18, 2019 Aectl Aharon 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 brit.2064 24 25 26 27 28