Key Property Management, et al. v. Cory Dean Nash El

• Court: District Court, D. Nevada
• Decided: December 9, 2025
• Docket: 2:25-cv-00459
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Key Property Management, et al., Case No. 2:25-cv-00459-ART-BNW

5 Plaintiff, Order and 6 v. Report and Recommendation

7 Cory Dean Nash El,

8 Defendants.

9 10 Cory Dean Nash El filed a notice of removal in an attempt to remove a case from state 11 court to this Court. Mr. Nash El moves to proceed in forma pauperis. ECF No. 1. He submitted 12 the affidavit required by 28 U.S.C. § 1915(a) showing an inability to prepay fees or costs or give 13 security for them. As a result, his request to proceed in forma pauperis is granted. 14 I. ANALYSIS 15 A. Screening standard 16 When a party is granted leave to proceed in forma pauperis under section 1915(a), the 17 complaint in such action is subject to mandatory review by the Court under 28 U.S.C. § 18 1915(e)(2)(B). In a typical in forma pauperis case filed by a pro se indigent plaintiff, the 19 mandatory screening of a complaint serves to ensure that such a plaintiff benefiting from the in 20 forma pauperis statutory scheme has presented a complaint which is legally sufficient to proceed. 21 Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) (“The right to proceed in forma 22 pauperis is not an unqualified one. It is a privilege, rather than a right.”) (citation omitted). 23 While the indigent Defendant here (not the Plaintiff) has sought and been granted leave to 24 proceed in forma pauperis, the plain language of Section 1915(e)(2)(B) makes clear that “the 25 court shall dismiss the case” without regard to which party sought leave to proceed in forma 26 pauperis under Section 1915(a). That is, Section 1915(e)(2)(B) does not limit the mandatory 27 screening of a complaint only to those cases in which the plaintiff is proceeding in forma 1 defendant to a federal district court are appropriately screened to determine whether or not such 2 removal is proper, including whether or not federal subject matter jurisdiction exists. See, e.g., 3 RM White LLC v. Ramirez, No. 24-CV-00485-SVK, 2024 WL 1051000 (N.D. Cal. Feb. 14, 2024) 4 (granting Defendants’ in forma pauperis application and then proceeding to screen Plaintiff's 5 complaint finding lack of subject matter jurisdiction); cf. Crown Props., Inc. v. Primo, No. C20- 6 6171 BHS, 2021 WL 197345 (W.D. Wash. Jan. 20, 2021), adopting Report and 7 Recommendation, No. 3:20-CV-06171-BHS, 2020 WL 8224953 (W.D. Wash. Dec. 18, 2020) 8 (screening petition for removal, styled as “proposed complaint”, filed by Defendants under 9 Section 1915(e)(2)(B), finding lack of subject matter jurisdiction, and denying Defendants’ in 10 forma pauperis application as moot). 11 A complaint is subject to sua sponte dismissal if the Court determines the complaint is 12 “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks 13 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 14 1915(e)(2)(B)(i)–(iii). A pro se plaintiff's pleadings are liberally construed and afforded the 15 “benefit of any doubt.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (citation omitted). 16 Because Defendant here seeks to remove the case from Nevada state court to this federal court, 17 the Defendant is the party seeking the benefit of litigating in this forum and thus effectively 18 stands in the shoes of a complainant by submitting this action for decision in this Court. 19 Under section 1915, the legal standard for whether a complaint is “frivolous” is well- 20 known: a “case is frivolous if it is ‘of little weight or importance: having no basis in law or fact.’” 21 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citations omitted). A complaint should be 22 dismissed as “frivolous” under section 1915 if the court lacks subject matter jurisdiction over the 23 action. See Castillo v. Marshall, 207 F.3d 15, 15 (9th Cir. 1997) (citation omitted); Pratt v. 24 Sumner, 807 F.2d 817, 819 (9th Cir. 19987) (recognizing the general proposition that a complaint 25 should be dismissed as frivolous under section 1915 review where subject matter jurisdiction is 26 lacking). In Pratt, the Ninth Circuit noted the distinction between section 1915’s “frivolousness” 27 review for lack of subject matter jurisdiction as compared to section 1915’s review for failure to 1 complaint may fail to state a cause of action, inasmuch as that is grounds for dismissal on the 2 merits and not for lack of jurisdiction.” Id. “Dismissal for want of jurisdiction may occur, 3 however, where a claim is ‘wholly insubstantial and frivolous.’” Id. (citing Bell v. Hood, 327 U.S. 4 678, 682–83 (1946)). 5 B. Screening the complaint 6 It is well-known that federal courts are courts of limited jurisdiction. New Frontier Inv. 7 AG v. BitCenter, Inc., No. 23-MC-80154-PHK, 2024 WL 459070, at *2 (N.D. Cal. Feb. 6, 2024) 8 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). A defendant may 9 remove a civil action filed in state court to federal district court where the district court would 10 have had original jurisdiction over the action. See 28 U.S.C. § 1441(a). 11 Accordingly, when a court undertakes screening of a complaint under Section 1915, the 12 court must independently evaluate its jurisdiction. See 28 U.S.C. § 1447(c) (“If at any time before 13 final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be 14 remanded.”) (emphasis added); B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 15 1999) (“[F]ederal courts are required sua sponte to examine jurisdictional issues[.]”) (citation 16 omitted); see, e.g., Dhanota v. Rogers, No. 18-cv-02876-SVK, 2018 WL 3459449, at *1-2 (N.D. 17 Cal. June 26, 2018), Report and Recommendation adopted, No. 18-cv-02876-BLF, 2018 WL 18 3428729 (N.D. Cal. July 16, 2018) (evaluating propriety of removal from state court as part of 19 screening complaint under Section 1915). 20 The bases for federal subject matter jurisdiction are also well-known: “Federal courts can 21 only adjudicate cases which the Constitution or Congress authorizes them to adjudicate, typically 22 cases involving a ‘federal question’ or involving ‘diversity of citizenship.’” Id. Federal courts 23 thus exercise two types of subject-matter jurisdiction over cases filed in district court: diversity 24 jurisdiction and federal-question jurisdiction. See Abpikar v. Hermatian, No. 19-cv-00425-NC, 25 2019 WL 330465, at *1 (N.D. Cal. Jan. 25, 2019). 26 Here, Mr. Nash El did not attach a copy of the complaint that was filed in state court. As a 27 result, this Court cannot evaluate whether it has federal-question or diversity jurisdiction over the 1 || Court has no information to be able to determine whether Mr. Nash El’s attempted removal 2 || complies with the time strictures of 28 U.S.C. § 1446. Thus, this Court recommends that the 3 || action be remanded back to state court. 4 C. CONCLUSION AND RECOMMENDATION 5 IT IS THEREFORE ORDERED that Mr. Nash El’s application to proceed in forma 6 || pauperis (ECF No. 1) is GRANTED. 7 IT IS FURTHER ORDERED that the clerk of court must detach and separately file his 8 || Notice of Removal (ECF No. 1-1). 9 IT IS RECOMMENDED that the matter be remanded back to state court. 10 NOTICE 11 This report and recommendation is submitted to the United States district judge assigned 12 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 13 || may file a written objection supported by points and authorities within fourteen days of being 14 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 15 || objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 16 |} 1153, 1157 (9th Cir. 1991). 17 18 DATED: December 9, 2025 19 20 Ky lant bain BRENDA WEKSLER 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28