Fenton v. Kirk

• Court: District Court, S.D. California
• Decided: April 20, 2022
• Docket: 3:22-cv-00509
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NANCY L. FENTON, Case No.: 22-CV-509 JLS (KSC)

12 Plaintiff, ORDER: (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, 14 GREGORY MICHAEL KIRK; AND (2) DISMISSING WITHOUT JMK PROPERTIES INC.; BLUE SKY 15 PREJUDICE PLAINTIFF’S REAL ESTATE; DEBORAH KIRK; and COMPLAINT 16 DOES 1–50,

17 Defendants. (ECF Nos. 1, 2) 18

19 Presently before the Court are Plaintiff Nancy L. Fenton’s Complaint (“Compl.,” 20 ECF No. 1) and Application to Proceed in District Court Without Prepaying Fees or Costs 21 (“IFP Mot.,” ECF No. 2). Having carefully considered Plaintiff’s Complaint, her IFP 22 Motion, and the applicable law, the Court GRANTS Plaintiff’s IFP Motion and 23 DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint for the reasons that follow. 24 IN FORMA PAUPERIS MOTION 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 / / / 28 / / / 1 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if she is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 4 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does 5 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege 6 poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). 7 Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit 8 demonstrates that paying court costs will result in a plaintiff’s inability to afford the 9 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is 10 destitute. Id. 11 Here, Plaintiff’s affidavit shows that she earns $995.00 per month in retirement 12 income, with no other sources of income. See IFP Mot. at 1–2. Plaintiff reports holding 13 $299.00 in her checking account, see id. at 2; claims ownership of a 2003 Acura MDX 14 worth approximately $2,300.00, see id. at 3; and apparently owns a home—the subject of 15 this action—that is worth approximately $949,000.00 but which Plaintiff claims has been 16 stolen from her, see id. at 3. Plaintiff’s monthly expenses are approximately $692.00, 17 including $120.00 for utilities, $200.00 for food, $160.00 for transportation, $169.00 for 18 homeowner’s insurance, and $43.00 for a Capital One credit card. See id. at 4–5. Plaintiff 19 does not anticipate any major changes to her monthly income, expenses, assets, or 20 liabilities in the coming year. Id. at 5. 21 The Court concludes that Plaintiff adequately has demonstrated that paying the $402 22 filing fee would result in her inability to afford the necessities of life. Accordingly, the 23 Court GRANTS Plaintiff’s IFP Motion. 24 / / / 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 28 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to 1 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 2 I. Standard of Review 3 Because Plaintiff is proceeding IFP, her Complaint requires a pre-answer screening 4 pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th 5 Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners 6 proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 7 (discussing 28 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss 8 a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks 9 damages from defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The 10 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 11 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 12 2014) (citations omitted). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 16 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 17 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 19 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the 20 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 21 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 22 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 24 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 25 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 26 “When a court does not have jurisdiction to hear an action, the claim is considered 27 frivolous.” Johnson v. E. Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989). 28 Moreover, “[t]he Court has an independent obligation to determine whether it has subject- 1 matter jurisdiction.” Cox v. Lee, No. CV-20-0275-PHX-DMF, 2020 WL 1904625, at *2 2 (D. Ariz. Apr. 17, 2020) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 3 (1999)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) 4 (“[F]ederal courts have an independent obligation to ensure that they do not exceed the 5 scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions 6 that the parties either overlook or elect not to press.”) (citation omitted). Pursuant to 7 Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks 8 subject-matter jurisdiction, the court must dismiss the action” (emphasis added). As the 9 plain language of Rule 12(h)(3) suggests, this requirement is mandatory. See Arbaugh v. 10 Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “‘subject-matter jurisdiction, because it 11 involves a court’s power to hear a case, can never be forfeited or waived”; therefore, “when 12 a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss 13 the complaint in its entirety”) (citation omitted). 14 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 15 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 16 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 17 unless the court determines that “the pleading could not possibly be cured by the allegation 18 of other facts.” Lopez, 203 F.3d at 1130–31 (citing Doe v. United States, 58 F.3d 494, 497 19 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). 20 II. Plaintiff’s Allegations 21 On March 12, 2020, Defendant Greg Kirk and an attorney named James McKinley 22 came to Plaintiff’s home, located at 4175 Porte de Merano #163, San Diego, California. 23 Compl. at 5, 7.2 Plaintiff claims that Kirk “assaulted and battered” her and subjected her 24 to “unwanted touching, sexual assault.” Id. at 7. Plaintiff claims that Kirk is “a real estate 25 broker representative of JMK Properties Inc.” Id. 26 27 28 2 In citing to Plaintiff’s Complaint, the Court refers to the blue numbers assigned by the CM/ECF system 1 In June of 2020, Plaintiff received texts and telephone calls “asking to buy [her] 2 home.” Id. On January 5, 2021, Plaintiff was notified that Kirk had filed an unlawful 3 detainer lawsuit against Plaintiff. Id. Kirk had allegedly “sealed the case and requested a 4 default although [Plaintiff] was there.” Id. The remainder of Plaintiff’s allegations on this 5 point are cut off in her Complaint. See id. 6 On March 6, 2022,3 Kirk sawed off the gate to Plaintiff’s house and the locks on her 7 door and screen door. Id. He then entered her home, removed all of her furnishings and 8 belongings, and “put [Plaintiff] outside in [her] night shirt and refused [her] medicine, 9 eyeglasses or street clothes.” Id. Plaintiff claims that Kirk “represented falsified claims of 10 ownership of [Plaintiff’s] home awarded to him b[y] unlawful detainer court.” Id. Plaintiff 11 alleges that she is the owner of the property in question, with certified deeds. Id. Plaintiff 12 claims that Kirk “even cleaned out [her] bank account,” and she is now “homeless and 13 without resources to eat, afford shelter.” Id. at 8. Plaintiff lacks her “everyday health 14 needs,” including her “breathing machine,” “blood pressure monitor,” and “heart 15 medic[in]e.” Id. 16 Plaintiff claims that she experienced substantial injuries, including “spinal damage, 17 arm torn from [her] body, shoulder tear, breast torn, back, neck, head, . . . leg, knees,” 18 which “is a great deal injuries for a senior and the likely hood of completely healing fro[m] 19 the extensive disabling injuries are not a prob[ab]ility.” Id. She says “[her] entire senior 20 life is now filled with pain and suffering, instead of dancing in the moonlight.” Id. 21 On April 13, 2022, Plaintiff filed her Complaint. See Docket. She asserts the Court 22 has jurisdiction on the basis of a federal question, premised on “civil rights, racial 23 predators, constutional [sic] rights.” Compl. at 3. She further asserts the “False Claims 24 Act” as a basis for her claims. See ECF No. 1-1 at 1. Plaintiff appears to state claims for 25 assault, battery, “breaking and entering,” and fraud. Compl. at 7. She also appears to claim 26 that Defendants converted her property and that Kirk’s actions amount to elder abuse. See 27

28 1 generally id. She seeks “the maximu[m] that this Court will allow for the extreme[] trauma 2 [she] ha[s] endured,” including “putting this despicable less than human person behind 3 bars, stripping him of his wordly [sic] goods.” Id. at 8. She also seeks monetary 4 compensation, including the value of her home; the cessation of any renovations to, rental 5 of, or sale of her home; the return of her home; the return of her medical and household 6 goods; and an injunction against “further attacks on [her,] a senior citizen, owner.” Id. at 7 5. 8 III. Analysis 9 A. Federal Rule of Civil Procedure 8 10 Federal Rule of Civil Procedure 8 requires pleadings to provide “a short and plain 11 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 12 “Violations of this Rule warrant dismissal.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th 13 Cir. 2013). “One well-known type of violation is when a pleading says too little—the 14 baseline threshold of factual and legal allegations required was the central issue in 15 the Iqbal line of cases.” Id. (emphasis in original) (citing Iqbal, 556 U.S. at 678). 16 Here, Plaintiff’s Complaint fails to provide sufficient facts. Indeed, some of her 17 allegations are cut off in her Complaint. See, e.g., Compl. at 7, 8. She also fails to 18 adequately identify the precise legal claims she is asserting against Defendants. She also 19 fails to identify how the named Defendants other than Kirk are liable. Accordingly, the 20 Complaint is subject to dismissal for violation of Rule 8. 21 B. Subject-Matter Jurisdiction 22 Further, based on the limited facts alleged, the Court is not satisfied that it has 23 subject-matter jurisdiction over the claims Plaintiff appears to be asserting. “Federal 24 district courts are courts of limited jurisdiction that ‘may not grant relief absent a 25 constitutional or valid statutory grant of jurisdiction’ and are ‘presumed to lack jurisdiction 26 in a particular case unless the contrary affirmatively appears.’” Cooper v. Tokyo Elec. 27 Power Co., 990 F. Supp. 2d 1035, 1038 (S.D. Cal. 2013) (quoting A-Z Int’l v. Phillips, 323 28 F.3d 1141, 1145 (9th Cir. 2003)). Generally, subject-matter jurisdiction is based on the 1 presence of a federal question, see 28 U.S.C. § 1331, or on complete diversity of citizenship 2 between the parties, see id. § 1332. 3 Plaintiff claims subject-matter jurisdiction on the basis of federal question 4 jurisdiction, pursuant to which courts have jurisdiction “of all civil actions arising under 5 the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. However, 6 “[s]ection 1331 . . . does not independently create subject matter jurisdiction; the suit must 7 ‘arise under’ the Constitution or some other specific section of the United States Code.” 8 Watson v. Chessman, 362 F. Supp. 2d 1190, 1199 (S.D. Cal. 2005). Here, Plaintiff appears 9 to assert claims for various violations of state law, including assault, battery, fraud, 10 conversion, and elder abuse. See generally Compl. Plaintiff broadly claims that 11 Defendants’ actions implicate “civil rights” and her constitutional rights, see id. at 3, but 12 Plaintiff fails to plead any facts to support any claims arising under the Constitution or the 13 Civil Rights Act. And while Plaintiff invokes the False Claims Act (the “FCA”), see ECF 14 No. 1-1 at 1, Plaintiff also fails to allege any facts to support a claim arising under the FCA, 15 which concerns claims of fraud against the government. See In re Schimmels, 85 F.3d 416, 16 419 n.1 (9th Cir. 1996) (citing 31 U.S.C. §§ 3729(a), 3730(b)). Accordingly, it does not 17 appear facially that Plaintiff’s claims “arise under” federal law. 18 Nor does it appear that this Court can properly exercise diversity jurisdiction over 19 this matter. Per 28 U.S.C. § 1332(a)(1), “[t]he district courts shall have original jurisdiction 20 of all civil actions where the matter in controversy exceeds the sum or value of $75,000, 21 exclusive of interest and costs, and is between . . . citizens of different States.” However, 22 Plaintiff alleges that she is a California citizen, see Compl. at 3, as is Kirk, see id. 23 Accordingly, it does not appear that Plaintiff and Defendants have “complete diversity” 24 such that this Court can exercise diversity jurisdiction over this matter. See Caterpillar 25 Inc. v. Lewis, 519 U.S. 61, 68 (1996) (explaining that 28 U.S.C. § 1332(a) requires 26 “complete diversity,” and “thus applies only to cases in which the citizenship of each 27 plaintiff is diverse from the citizenship of each defendant”). 28 / / / 1 Accordingly, the Court finds that Plaintiff's Complaints fails to comply with Rule 8 2 || and that this Court additionally lacks subject-matter jurisdiction over Plaintiff's Complaint. 3 || Thus, dismissal is warranted pursuant to 28 U.S.C. § 1915(e)(2). 4 CONCLUSION 5 In light of the foregoing, the Court GRANTS Plaintiffs IFP Motion and 6 || DISMISSES WITHOUT PREJUDICE Plaintiffs Complaint pursuant to 28 U.S.C. 7 || § 1915(e)(2) for failure to comply with Federal Rule of Civil Procedure 8 and for lack of 8 || federal subject-matter jurisdiction. 9 Plaintiff MAY FILE an amended complaint curing the deficiencies noted above on 10 || or before June 6, 2022. Any amended filing must be complete in itself, without reference 11 |/to Plaintiffs original Complaint. Any claim not re-alleged in Plaintiff's amended 12 ||}complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 13 ||v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 14 pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 15 || (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not realleged 16 |/in an amended pleading may be “considered waived”). 17 Should Plaintiff fail to file an amended complaint on or before June 6, 2022, the 18 || Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure 19 || to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and 20 || her failure to prosecute in compliance with a court order requiring amendment. See 21 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage 22 ||of the opportunity to fix his complaint, a district court may convert the dismissal of the 23 || complaint into dismissal of the entire action.”’). Such dismissal would be without □□□□□□□□□ 24 || to Plaintiff refiling her claims in state court. 25 IT IS SO ORDERED. 26 Dated: April 20, 2022 psi L. Lo meeaitie- 27 on. Janis L. Sammartino United States District Judge