Asia Johnson v. Rothschild

ALD-012 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2349
___________
ASIA JOHNSON,
Appellant
v.
ROTHSCHILD
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-18-cv-00606)
District Judge: Honorable Mark R. Hornak
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 18, 2018
Before: MCKEE, SHWARTZ, and BIBAS, Circuit Judges
(Opinion filed: November 6, 2018)
_________
OPINION *
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Asia Johnson appeals the District Court’s dismissal of her civil action and denying
her application to proceed in forma pauperis as moot. For the reasons below, we will
summarily affirm the District Court’s order with a modification.
Johnson initiated the lawsuit by filing a motion for leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915, together with a complaint naming “Rothschild” as
the lone defendant. As a resident of Pennsylvania, Johnson asserted federal court
diversity of citizenship jurisdiction under 28 U.S.C. § 1332, identifying Rothschild as a
resident of the United Kingdom. In the complaint, Johnson alleged that “Pittsburgh air is
the most polluted in the nation our climate is based on our behavior and how the
Rothschild control our weather and what released in our air” [sic]. (Complaint, ¶III
Statement of Claim.) As relief, Johnson requested “clean air better control on our
climate.” (Id., ¶IV Relief.) 1
The assigned Magistrate Judge issued a report and recommendation to dismiss the
action under § 1915(e)(2)(B) of the in forma pauperis statute. The Magistrate Judge
determined that Johnson’s claims and the relief embraced an inarguable legal conclusion,
presented fanciful factual allegations, and was based on a “fantastic or delusional” factual
scenario. (See May 14, 2018 Report and Recommendation at 3, citing Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989).) Thus, the Magistrate Judge concluded that the
1
As an exhibit to the complaint, Johnson attached a letter and a certificate dated April 25,
2018, written on behalf of President Donald J. Trump, concerning Johnson’s inclusion in
the Republican Presidential Honor Roll.
2
complaint was frivolous within the meaning of § 1915(e)(2)(B), and that granting leave to
amend the complaint would be futile. The Magistrate Judge further recommended
denying Johnson’s in forma pauperis application as moot. Johnson filed objections. The
District Court considered Johnson’s objections but adopted the report and
recommendation, dismissed the action, and denied the in forma pauperis motion as moot.
Johnson appeals. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
We may affirm for any reason supported by the record. See Brightwell v. Lehman, 637
F.3d 187, 191 (3d Cir. 2011).
We first address the District Court’s disposition of Johnson’s in forma pauperis
motion. A district court’s determination of whether to grant a motion to proceed in forma
pauperis should focus on the applicant’s financial eligibility. See Sinwell v. Shapp,
536 F.2d 15, 19 (3d Cir. 1976). An analysis of the complaint under 28 U.S.C.
§ 1915(e)(2)(B) is appropriate only after a litigant is granted leave to proceed pursuant to
the in forma pauperis statute. See Deutsch v. United States, 67 F.3d 1080, 1084 n.5 (3d
Cir. 1995) (discussing procedure of determining in forma pauperis status, followed by
consideration of whether a complaint is “frivolous or malicious” under former
§ 1915(d)). Here, the District Court erred in denying Johnson’s in forma pauperis motion
as moot. Instead, the District Court should have addressed the motion before subjecting
the complaint to the screening provisions of the in forma pauperis statute. Johnson
indicated in her motion filed in the District Court that she had income of $653 per month
3
and $200 in cash or savings, while her expenses totaled approximately $536 per month.
A litigant need not be “absolutely destitute” or contribute his or her “last dollar” in order
to qualify for in forma pauperis status. See Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331, 339 (1948). On this record, we conclude that Johnson was financially
eligible to proceed in forma pauperis when she filed her complaint.
We now turn to the District Court’s analysis of Johnson’s complaint. We exercise
plenary review over the District Court’s dismissal of the case as frivolous or legally
without basis. See Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). We agree with
the District Court’s assessment of the allegations contained in Johnson’s complaint. See
Neitzke, 490 U.S. at 325 (a complaint is frivolous if it “lacks an arguable basis either in
law or in fact”). Moreover, while generally a plaintiff should be given leave to amend a
complaint subject to dismissal, we discern no error in the District Court’s determination
here that allowing Johnson leave to amend would have been futile. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm
the District Court’s judgment but direct that it modify its order to grant Johnson’s
application to proceed in forma pauperis. See 3d Cir. LAR 27.4; I.O.P. 10.6.
4