(PS) Spears v. Spears ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAUREN SPEARS, No. 2:21–cv–1472–TLN–CKD PS 12 Plaintiff, 13 v. ORDER 14 BRIAN K. SPEARS, (ECF No. 4) 15 Defendant. 16 17 Plaintiff, who is representing herself in this action, again seeks leave to proceed in forma 18 pauperis (“IFP”) with her complaint.1 (ECF Nos. 1, 4.) See 28 U.S.C. § 1915. Because the IFP 19 application is incomplete, the court denies plaintiff’s IFP request without prejudice to re- 20 submission of a complete application within 30 days. Further, because it is unclear what plaintiff 21 is alleging and how this federal court has jurisdiction over the case, plaintiff shall also have 30 22 days to file an amended complaint. 23 I. IFP Request 24 When plaintiff filed her complaint and first request for leave to proceed IFP, she used a 25 state court form and listed her address as that of the El Dorado County Jail. (ECF No. 2 at 1.) 26 The court denied plaintiff’s original IFP request because the state court fee-waiver form plaintiff 27 1 Because plaintiff is self-represented, all pretrial proceedings are referred to the undersigned 28 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c)(21). 1 submitted was missing certain information required to proceed IFP as a prisoner in federal court. 2 (ECF Nos. 2, 3.) The order denying the original IFP request was sent to plaintiff at the El Dorado 3 County Jail address but was later returned as undeliverable. (Docket Text 9/17/2021, 9/27/2021.) 4 On October 29, 2021, plaintiff visited the court’s public service counter and was re-served a copy 5 of the order and a blank copy of this court’s Application to Proceed In Forma Pauperis by a 6 Prisoner, as previously instructed by the court. (Docket Text 10/29/2021.)2 At the same time, 7 plaintiff filled out the IFP form and filed it with the court. (ECF No. 4.) 8 On the IFP form, plaintiff checked the box stating she is not currently incarcerated, but 9 she still listed “El Dorado County” as her “place of [] incarceration.” (Id. at 1.) Plaintiff also 10 gave what appears to be a private rented mailbox as her mailing address. (Id.) Plaintiff answered 11 many of the questions on the form, but she did not answer a critical question about whether she 12 has received any income or other funds over the past twelve months (question 3). (Id.) Without 13 that information the court is unable to evaluate plaintiff’s application. 14 Accordingly, plaintiff’s IFP application is denied for now, although plaintiff is granted 15 another opportunity to re-submit her application. Because it appears more likely that plaintiff is 16 no longer incarcerated, the court is enclosing a non-prisoner version of the IFP form for plaintiff 17 to complete. 18 If, however, plaintiff is incarcerated at the time of re-filing, she must comply with the 19 more onerous requirements for proceeding IFP as a prisoner, and she should instead fully 20 complete the prisoner version of the IFP form (previously provided by the court, and available on 21 the court’s website). If incarcerated, plaintiff must have an authorized prison official complete 22 and sign the portion of the prisoner IFP form certifying plaintiff’s current and average prison 23 account balances. See 28 U.S.C. § 1915(b) (setting monthly payment schedule for prisoners to 24 pay full filing fee, based on prison account balances). 25 //// 26 27 2 Although the docket text description reflects service by mail, the docket text descriptions from the same day in plaintiff’s two co-pending lawsuits in this court indicate that plaintiff visited the 28 service counter in person. (Nos. 2:21-cv-01458-KJM-AC, 2:21-cv-01769-JDP.) 1 On whichever version of the IFP form plaintiff re-files, she must clearly state whether or 2 not she is currently incarcerated, and she must fully complete all sections of the form. 3 II. Complaint Screening 4 Pursuant to the IFP statute, federal courts must screen IFP complaints and dismiss any 5 case that is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or 6 seeks monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 7 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but 8 requires a district court to dismiss an [IFP] complaint that fails to state a claim.”). Further, 9 federal courts have an independent duty to ensure that federal subject matter jurisdiction exists. 10 See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 11 Legal Standards 12 A complaint fails to state a claim if it either lacks a cognizable legal theory or sufficient 13 facts to allege a cognizable legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 14 2015). To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 15 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 16 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, relief 19 cannot be granted for a claim that lacks facial plausibility. Twombly, 550 U.S. at 570. “A claim 20 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 21 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. 23 When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 25 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 26 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 27 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 28 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 1 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 2 In addition, the court must dismiss a case if, at any time, it determines that it lacks subject 3 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has jurisdiction 4 over a civil action when (1) a federal question is presented in an action “arising under the 5 Constitution, laws, or treaties of the United States” or (2) there is complete diversity of 6 citizenship between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. 7 §§ 1331, 1332(a). 8 Pleadings by self-represented litigants are liberally construed. See Haines v. Kerner, 404 9 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 Unless it is clear that no amendment can cure the defects of a complaint, a self-represented 11 plaintiff proceeding IFP is ordinarily entitled to notice and an opportunity to amend before 12 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other 13 grounds by statute as stated in Lopez, 203 F.3d 1122; Franklin v. Murphy, 745 F.2d 1221, 1230 14 (9th Cir. 1984). Nevertheless, leave to amend need not be granted when further amendment 15 would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 16 The Complaint 17 As her complaint, plaintiff filed in this court a two-page California state court form 18 complaint designed to be used for breach-of-contract lawsuits. (ECF No. 1.) Plaintiff Lauren 19 Spears lists herself and four other individuals as plaintiffs, indicating that at least two of the other 20 listed plaintiffs are not “competent adults” because they are either under age 18 or are 21 “autistic/mentally disabled.” (Id. at 1.) Plaintiff brings this complaint against Brian K. Spears, 22 and all but one of the listed plaintiffs share the parties’ same last name. (Id.) The complaint does 23 not list any causes of action, nor does it contain any factual allegations describing what events 24 give rise to this suit. Plaintiff simply lists a series of legal phrases: “Forgery – Pain & Suffering,” 25 “sexual assault,” “domestic abuse,” and “mental anguish to all [listed plaintiffs].” (Id. at 2.) 26 Plaintiff also indicates that she is seeking an unspecified amount of damages. (Id.) 27 //// 28 //// 1 Analysis 2 There are several problems with this complaint which plaintiff must fix if she wishes to 3 move forward with this suit in this court. 4 1. Plaintiff Cannot Represent Others 5 First, despite naming five plaintiffs, only plaintiff Lauren Spears’ signature appears on the 6 complaint. Plaintiff Spears, as a non-lawyer, has no authority to represent anyone other than 7 herself in court. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (non- 8 attorney plaintiff may not attempt to pursue claim on behalf of others in a representative 9 capacity). This bar applies equally to those attempting to represent their own children. Johns v. 10 Cty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[A] parent or guardian cannot bring an 11 action on behalf of a minor child without retaining a lawyer.”). 12 If plaintiff wishes to sue in conjunction with other unrepresented but competent adults 13 over the age of 18, each individual plaintiff must sign the amended complaint on his or her own 14 behalf. In order for any minors or others lacking legal capacity to sue alongside plaintiff, they 15 must be represented by a licensed attorney. 16 2. Insufficient Statement of the Claim 17 Second, and most problematically, the complaint does not clearly describe the events 18 plaintiff is complaining about. Rule 8 of the Federal Rules of Civil Procedure requires a “short 19 and plain statement” of (1) the grounds for the court’s jurisdiction and (2) the claim showing that 20 plaintiff is entitled to relief. Fed. R. Civ. P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 21 555 (2007) (purpose of these pleading requirements is to “give the defendant fair notice of what 22 the . . . claim is and the grounds upon which it rests” (cleaned up)). The current allegations do 23 not clearly state what happened to plaintiff, when it happened, or who did what. Although it 24 seems that defendant allegedly assaulted or otherwise abused one or more of the people listed as 25 plaintiffs, the complaint does not include any factual details about what exactly defendant did and 26 how it harmed any plaintiff. (See ECF No. 1 at 2.) 27 Any amended complaint must set forth specific legal causes of action in separate sections. 28 Under each section, plaintiff must then list the specific factual allegations supporting that 1 particular claim. (For brevity, plaintiff may refer to specific prior paragraphs.) For each claim, 2 plaintiff must allege what specific conduct defendant engaged in, when the conduct occurred, and 3 how the conduct harmed her. Plaintiff is welcome to use additional pages to explain these details, 4 beyond the space provided in the enclosed complaint form; however, the statement of the claim 5 should be kept relatively “short.” 6 3. No Viable Causes of Action 7 Third, the complaint currently does not identify any viable causes of action over which 8 this court possesses subject matter jurisdiction. 9 a. No Subject Matter Jurisdiction over State Law Claims Against In-State 10 Defendants 11 Plaintiff refers generally to various sorts of “tort” claims, such as assault and infliction of 12 emotional distress. (ECF No. 1 at 2.) But these sorts of personal injury claims arise under state 13 law, not federal law, so this court would only have subject matter jurisdiction over those claims in 14 two specific circumstances. First, the court could have subject matter jurisdiction over the state 15 law claims if the parties were completely “diverse” from each other and the amount in 16 controversy exceeded $75,000. See 28 U.S.C. § 1332(a)(1). Complete diversity requires that 17 each plaintiff must be a citizen of a different state from the defendant(s). See Exxon Mobil Corp. 18 v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). Natural persons are deemed to be citizens of 19 the state in which they are “domiciled.” Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). “A 20 person’s domicile is her permanent home, where she resides with the intention to remain or to 21 which she intends to return.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). 22 The current complaint does not indicate where any of the parties are domiciled. This 23 omission is fatal to an assertion of diversity jurisdiction. See id. at 857-58 (party asserting 24 diversity jurisdiction bears the burden to allege each party’s state citizenship, and failure to do so 25 deprives the court of diversity jurisdiction). If defendant Brian K. Spears’ permanent home is in 26 the same state as plaintiff Lauren Spears—or the same state as any other proper plaintiff—the 27 court will be unable to hear the personal injury claims suggested in the complaint, if plaintiff is 28 indeed bringing only state law claims. 1 Alternatively, the court could exercise subject matter jurisdiction over personal injury or 2 other state law claims if they are “so related to” federal claims in the action that they “form part 3 of the same case or controversy.” See 28 U.S.C. § 1367 (supplemental jurisdiction). At this time, 4 the complaint indicates no claims arising under federal law, however. Unless plaintiff adds a 5 good faith federal claim, the court also cannot exercise supplemental jurisdiction over the 6 apparent state law claims. Plaintiff’s recourse would be to file her complaint in state court. 7 b. No Diversity Jurisdiction over Divorce, Alimony, or Child Custody Cases 8 Even if plaintiff can in good faith allege that she and the defendant are domiciled in 9 different states and the amount in controversy exceeds $75,000, the court cautions plaintiff that it 10 still will not be able to hear any claims that involve the “issuance or modification of a divorce, 11 alimony, or child-custody decree.” Bailey v. MacFarland, 5 F.4th 1092, 1096 (9th Cir. 2021); see 12 Ankenbrandt v. Richards, 504 U.S. 689 (1992). The “domestic relations exception” prevents 13 federal courts from exercising jurisdiction in such matters which are uniquely appropriate for 14 state courts to decide. Although the nature of the current dispute is unclear at present, the case 15 seems to involve parents and children—based on the parties’ last names. Therefore, the court 16 notes this general exception for plaintiff’s benefit in deciding whether and how to amend her 17 complaint. 18 Leave to Amend 19 In light of plaintiff’s pro se status, and because it is at least conceivable that plaintiff could 20 allege facts to invoke this court’s jurisdiction and potentially state a claim, the court grants 21 plaintiff an opportunity to amend the complaint. See Lopez, 203 F.3d at 1130 (“leave to amend 22 should be granted if it appears at all possible that the plaintiff can correct the defect”) (cleaned 23 up). If plaintiff wishes to continue to attempt to proceed in this federal court, as opposed to state 24 court, it would be beneficial to use this court’s form complaint, which is enclosed with this 25 order—instead of the state court form previously used. 26 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 27 to make the first amended complaint complete. Local Rule 220 requires that an amended 28 complaint be complete in itself without reference to any prior pleading. As a general rule, an 1 | amended complaint supersedes the original complaint, and once the first amended complaint is 2 || filed, the original complaint no longer serves any function in the case. 3 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 4 || plaintiff determines that she is unable to amend the complaint in compliance with the court’s 5 || order, she may alternatively file a notice of voluntary dismissal of her claims without prejudice 6 || pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Plaintiff would then be free to pursue 7 || these claims in state court instead. 8 ORDER 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff's incomplete application to proceed in forma pauperis (ECF No. 4) is DENIED 11 without prejudice; 12 2. The Clerk of Court is instructed to send plaintiff, in addition to a copy of this order: 13 a. the court’s form Complaint for a Civil Case; and 14 b. an Application to Proceed In Forma Pauperis by a Non-Prisoner; 15 3. Within 30 days of this order, plaintiff shall file 16 a. properly completed in forma pauperis application on the appropriate form, 17 depending on whether she is or is not currently incarcerated; and 18 b. a first amended complaint addressing the defects identified in this order; 19 4. If plaintiff determines that she is unable to amend the complaint in compliance with the 20 court’s order, she may alternatively file a notice of voluntary dismissal of the action; and 21 5. Failure to timely comply with this order will result in a recommendation that the action be 22 dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 23 | Dated: November 23, 2021 / □□□ / 4 [iy ai CAROLYNK. DELANEY 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 19.spea.1472