1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 BARBARA ANN MOORE, Case No.: 3:21-cv-1023-GPC(WVG)
11 Plaintiff, ORDER: 12 v. (1) GRANTING PLAINTIFF’S 13 DANIEL MOORE, et als., MOTION TO PROCEED IN FORMA 14 Defendants. PAUPERIS; [Dkt. No. 2] 15
16 (2) SUA SPONTE DISMISSING PLAINTIFF’S COMPLAINT FOR 17 FAILURE TO STATE A CLAIM 18 (3) DENYING PLAINTIFF’S 19 REQUEST FOR APPOINTMENT OF 20 COUNSEL AS MOOT [Dkt. No. 3] 21
24 On May 28, 2021, Plaintiff Barbara Ann Moore, proceeding pro se, filed a form 25 complaint against Defendants Daniel Moore, San Diego County, Johnson and Johnson 26 Corporate Headquarters (“Johnson and Johnson”), Arnold & Itkin Law Firm, Cox 27 Corporate Headquarters, US Postal Headquarters, GEICO, Esurance Ins., Palmotto GBA, 28 Defense Logistics Agency, Prisoner Transportation Services, and Diane K Morales. 1 (Dkt. No. 1.) She also filed a motion to proceed in forma pauperis and motion for 2 appointment of counsel. (Dkt. Nos. 2, 3.) Based on the reasoning below, the Court 3 GRANTS Plaintiff’s motion to proceed in forma pauperis, sua sponte DISMISSES the 4 action for failure to state a claim and DENIES the request for appointment of counsel. 5 A. Motion to Proceed In Forma Pauperis 6 All parties instituting any civil action, suit, or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if he is granted leave to proceed In Forma Pauperis (“IFP”) 10 pursuant to § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 11 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an 12 affidavit demonstrating his inability to pay the filing fee, and the affidavit must include a 13 complete statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). 14 Here, Plaintiff submitted a declaration reporting that she receives $830.00/month 15 from disability benefits and $62.00/month in food stamps. (Dkt. No. 2 at 1-2.2) She has 16 not been employed for the past two years. (Id. at 2.) Plaintiff owns a home with a value 17 of around $8,000 and a 2006 Pontiac Vibe with a value of around $1,200. (Id. at 3.) She 18 has expenses of around $1,010.00. (Id. at 4.) Because her expenses exceed her monthly 19 income, the Court concludes that Plaintiff has demonstrated an inability to pay the filing 20 fee and GRANTS Plaintiff’s motion for leave to proceed IFP. 21 B. Sua Sponte Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) 22 A complaint filed by any person proceeding IFP pursuant to § 1915(a) is subject to 23 mandatory sua sponte review and dismissal by the Court if it is “frivolous, or malicious; 24 fails to state a claim upon which relief may be granted; or seeks monetary relief against a 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 27 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to 28 proceed IFP. Id. 1 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 2 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not 3 limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). § 4 1915(e)(2) mandates that a court reviewing a complaint filed pursuant to the IFP 5 provisions of 28 U.S.C. § 1915 rule on its own motion to dismiss before directing that the 6 complaint be served by the U.S. Marshal pursuant to Federal Rule of Civil Procedure 7 4(c)(2). Lopez, 203 F.3d at 1127. 8 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 9 Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this 10 limited jurisdiction, and the burden of establishing the contrary rests upon the party 11 asserting jurisdiction.” Id. It is well-established that a federal court cannot reach the 12 merits of any dispute until it confirms that it retains subject matter jurisdiction to 13 adjudicate the issues presented. Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 14 94-95 (1988). 15 Federal subject matter jurisdiction may be based on (1) federal question 16 jurisdiction under 28 U.S.C. § 1331 or (2) diversity jurisdiction under 28 U.S.C. § 1332. 17 The complaint must establish either that federal law creates the cause of action or that the 18 plaintiff’s right to relief necessarily depends on the resolution of substantial questions of 19 federal law. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for 20 Southern Cal., 463 U.S. 1, 10-11 (1983). Alternatively, a federal court may have 21 diversity jurisdiction over an action involving citizens of different states where the 22 amount of controversy exceeds $75,000. 28 U.S.C. § 1332. “The essential elements of 23 diversity jurisdiction, including the diverse residence of all parties, must be affirmatively 24 alleged in the pleadings.” Bautista v. Pan Am. World Airlines, Inc., 828 F.2d 546, 552 25 (9th Cir. 1987). 26 Here, Plaintiff complains that Johnson and Johnson has conspired against her “with 27 other organizations . . . to prevent payment of bad medication results.” (Dkt. No. 1, 28 Compl. at 9.) She alleges that Arnold & Itkins Law Firm has recovered funds to “pay out 1 a different case.” (Id. at 3.) She asserts that GEICO, Prison Transportation Services, 2 Diane K. Morales, Defense Logistics Agency, Esurance Ins., and Palmotto GBA have 3 received and reported false information of her identity. (Id.) Plaintiff seeks damages and 4 injunctive relief. (Id.) However, Plaintiff does not allege that the Court has federal 5 question jurisdiction over this case. 6 Further, Defendants San Diego County, Esurance Ins., and Defense Logistics Age 7 are alleged to be citizens of California. (Id.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 BARBARA ANN MOORE, Case No.: 3:21-cv-1023-GPC(WVG)
11 Plaintiff, ORDER: 12 v. (1) GRANTING PLAINTIFF’S 13 DANIEL MOORE, et als., MOTION TO PROCEED IN FORMA 14 Defendants. PAUPERIS; [Dkt. No. 2] 15
16 (2) SUA SPONTE DISMISSING PLAINTIFF’S COMPLAINT FOR 17 FAILURE TO STATE A CLAIM 18 (3) DENYING PLAINTIFF’S 19 REQUEST FOR APPOINTMENT OF 20 COUNSEL AS MOOT [Dkt. No. 3] 21
24 On May 28, 2021, Plaintiff Barbara Ann Moore, proceeding pro se, filed a form 25 complaint against Defendants Daniel Moore, San Diego County, Johnson and Johnson 26 Corporate Headquarters (“Johnson and Johnson”), Arnold & Itkin Law Firm, Cox 27 Corporate Headquarters, US Postal Headquarters, GEICO, Esurance Ins., Palmotto GBA, 28 Defense Logistics Agency, Prisoner Transportation Services, and Diane K Morales. 1 (Dkt. No. 1.) She also filed a motion to proceed in forma pauperis and motion for 2 appointment of counsel. (Dkt. Nos. 2, 3.) Based on the reasoning below, the Court 3 GRANTS Plaintiff’s motion to proceed in forma pauperis, sua sponte DISMISSES the 4 action for failure to state a claim and DENIES the request for appointment of counsel. 5 A. Motion to Proceed In Forma Pauperis 6 All parties instituting any civil action, suit, or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if he is granted leave to proceed In Forma Pauperis (“IFP”) 10 pursuant to § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 11 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an 12 affidavit demonstrating his inability to pay the filing fee, and the affidavit must include a 13 complete statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). 14 Here, Plaintiff submitted a declaration reporting that she receives $830.00/month 15 from disability benefits and $62.00/month in food stamps. (Dkt. No. 2 at 1-2.2) She has 16 not been employed for the past two years. (Id. at 2.) Plaintiff owns a home with a value 17 of around $8,000 and a 2006 Pontiac Vibe with a value of around $1,200. (Id. at 3.) She 18 has expenses of around $1,010.00. (Id. at 4.) Because her expenses exceed her monthly 19 income, the Court concludes that Plaintiff has demonstrated an inability to pay the filing 20 fee and GRANTS Plaintiff’s motion for leave to proceed IFP. 21 B. Sua Sponte Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) 22 A complaint filed by any person proceeding IFP pursuant to § 1915(a) is subject to 23 mandatory sua sponte review and dismissal by the Court if it is “frivolous, or malicious; 24 fails to state a claim upon which relief may be granted; or seeks monetary relief against a 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 27 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to 28 proceed IFP. Id. 1 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 2 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not 3 limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). § 4 1915(e)(2) mandates that a court reviewing a complaint filed pursuant to the IFP 5 provisions of 28 U.S.C. § 1915 rule on its own motion to dismiss before directing that the 6 complaint be served by the U.S. Marshal pursuant to Federal Rule of Civil Procedure 7 4(c)(2). Lopez, 203 F.3d at 1127. 8 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 9 Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this 10 limited jurisdiction, and the burden of establishing the contrary rests upon the party 11 asserting jurisdiction.” Id. It is well-established that a federal court cannot reach the 12 merits of any dispute until it confirms that it retains subject matter jurisdiction to 13 adjudicate the issues presented. Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 14 94-95 (1988). 15 Federal subject matter jurisdiction may be based on (1) federal question 16 jurisdiction under 28 U.S.C. § 1331 or (2) diversity jurisdiction under 28 U.S.C. § 1332. 17 The complaint must establish either that federal law creates the cause of action or that the 18 plaintiff’s right to relief necessarily depends on the resolution of substantial questions of 19 federal law. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for 20 Southern Cal., 463 U.S. 1, 10-11 (1983). Alternatively, a federal court may have 21 diversity jurisdiction over an action involving citizens of different states where the 22 amount of controversy exceeds $75,000. 28 U.S.C. § 1332. “The essential elements of 23 diversity jurisdiction, including the diverse residence of all parties, must be affirmatively 24 alleged in the pleadings.” Bautista v. Pan Am. World Airlines, Inc., 828 F.2d 546, 552 25 (9th Cir. 1987). 26 Here, Plaintiff complains that Johnson and Johnson has conspired against her “with 27 other organizations . . . to prevent payment of bad medication results.” (Dkt. No. 1, 28 Compl. at 9.) She alleges that Arnold & Itkins Law Firm has recovered funds to “pay out 1 a different case.” (Id. at 3.) She asserts that GEICO, Prison Transportation Services, 2 Diane K. Morales, Defense Logistics Agency, Esurance Ins., and Palmotto GBA have 3 received and reported false information of her identity. (Id.) Plaintiff seeks damages and 4 injunctive relief. (Id.) However, Plaintiff does not allege that the Court has federal 5 question jurisdiction over this case. 6 Further, Defendants San Diego County, Esurance Ins., and Defense Logistics Age 7 are alleged to be citizens of California. (Id. at 1-2.) Accordingly, because both Plaintiff 8 and certain Defendants are citizens of the same state, Plaintiff fails to establish diverse 9 citizenship. 10 Thus, because Plaintiff fails to assert federal question or diversity jurisdiction, the 11 Court DISMISSES the complaint for lack of subject matter jurisdiction. 12 Additionally, under Federal Rule of Civil Procedure (“Rule”) 8(a)(2), a pleading 13 must contain a “short and plain statement of the claim showing that the pleader is entitled 14 to relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not give “detailed factual 15 allegations,” a plaintiff must plead sufficient facts that, if true, “raise a right to relief 16 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). 17 To state a claim upon which relief may be granted “a complaint must contain sufficient 18 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim 20 is facially plausible when the factual allegations permit “the court to draw the reasonable 21 inference that the defendant is liable for the misconduct alleged.” Id. 22 Here, Plaintiff has not asserted any cause of action and has not provided sufficient 23 facts to support a plausible claim. Moreover, she fails to allege facts to support a claim 24 as to each named Defendant the complaint. See McHenry v. Renne, 84 F.3d 1172, 1179 25 (9th Cir. 1996) (affirming the dismissal of an amended complaint for failing to “state[] 26 clearly how each and every defendant was alleged to have violated plaintiffs’ legal 27 rights.”) Accordingly, the complaint fails to comply with Rule 8 and the Court 28 additionally DISMISSES the complaint for failure to state a claim. 1 ||C. Request for Appointment of Counsel 2 Plaintiff requests the appointment of counsel to assist her in prosecuting this civil 3 |}action. (Dkt. No. 3.) Here, because the Court dismisses Plaintiff's complaint for failure 4 state a claim upon which relief can be granted, the Court DENIES Plaintiff's request to 5 appoint counsel as moot.* 6 Conclusion 7 In sum, the Court GRANTS Plaintiffs motion to proceed in forma pauperis, sua 8 sponte DISMISSES the complaint for failure to state a claim and DENIES Plaintiff's 9 || request for appointment of counsel as moot. The Court GRANTS Plaintiff thirty (30) 10 || days from the date stamped on this order to file an amended complaint curing the 11 || deficiencies identified above. 12 IT IS SO ORDERED. 13 ||Dated: June 3, 2021 (73 2alo C8 ) 14 Hon. Gonzalo P. Curiel 15 United States District Judge 16 17 18 19 20 21 22 23 24 |} ——_—_—————— 26 ||} The Constitution provides no right to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. Social Servs., 452 U.S. 18, 25 27 (1981). Under 28 U.S.C. § 1915(e)(1), however, district courts are granted discretion to appoint counsel 22 or 081), persons under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th