1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 TIFFANY RECINOS, Case No. 3:23-cv-5546-RJB 7 Plaintiff, v. ORDER TO SHOW CAUSE OR 8 FILE AMENDED COMPLAINT JUAN RECINOS, 9 Defendants. 10
11 This matter comes before the Court on plaintiff’s motion to proceed in forma 12 pauperis. Dkt. 1. This matter has been referred for review of the IFP application to the 13 undersigned Magistrate Judge. Mathews, Sec’y of H.E.W. v. Weber, 423 U.S. 261 14 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4). For reasons discussed 15 below, plaintiff is ordered to show cause why this cause of action should not be 16 dismissed or file an amended complaint on or before July 21, 2023. 17 FACTUAL BACKGROUND 18 Plaintiff, proceeding pro se, brings this action against defendant, Juan Recinos, 19 whom plaintiff identifies as the biological father to her four children. Dkt. 1-1. Plaintiff 20 also names Washington State, Shannon Barry, an employee of “DSHS” and Abigail 21 Hughes, an employee of “DCS”, as defendants. Id. Elsewhere in the complaint, plaintiff 22 names the Washington State Department of Corrections, Washington State Department 23 of Social and Health Services, and the Washington State Department of Child Support 24 1 as defendants. Id. at 2-5. Plaintiff alleges the basis for jurisdiction as both federal 2 question and diversity jurisdiction. Id. at 3. 3 Plaintiff claims that she is owed $3.25 billion U.S. Dollars because her 4 inheritance was stolen. Id. at 5. Specifically, plaintiff states that Juan Recinos stole the
5 inheritance she received from her grandparents after she was involved in a car 6 accident, and she appears to challenge the role of various Washington State 7 departments in the probate proceedings. Id. at 6. She is seeking the enforcement of 8 child support, back payments, alimony, and 100 percent of her inheritance. Id. at 7. 9 Plaintiff attaches 49 pages of documentation in support of her claim, including a 2011 10 Order prohibiting contact issued in Pierce County Superior Court, a 2023 Order denying 11 a motion to rescind the no contact order issued in Pierce County Superior Court, a 2022 12 petition for writ for execution and writ for garnishment filed by plaintiff in Pierce County 13 Superior Court, a 2011 parenting plan signed by the Pierce County Superior Court, the 14 Last Will and Testament of Maxene Peterson filed in the Pierce County Clerk’s office in
15 2008, the Last Will and Testament of Keith Peterson filed in the Pierce County Clerk’s 16 Office in 2010, two 2023 notices from the Washington State Department of Social and 17 Health Services Division of Child Support declining to review the 2011 support order, 18 and a letter from the Social Security Administration informing plaintiff about her social 19 security benefits. Id. at 8-57. 20 DISCUSSION 21 The district court may permit indigent litigants to proceed IFP upon completion of 22 a proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad 23
24 1 discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 2 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). 3 Moreover, a court should “deny leave to proceed in forma pauperis at the outset 4 if it appears from the face of the proposed complaint that the action is frivolous or
5 without merit.” Tripati v. First Nat’l Bank & Tr., 821 F.2d 1368, 1369 (9th Cir. 1987) 6 (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis 7 complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Tripati, 821 F.2d 8 at 1370 (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. 9 Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). 10 A pro se plaintiff’s complaint is to be construed liberally, but like any other 11 complaint it must nevertheless contain factual assertions sufficient to support a facially 12 plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 13 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when 14 “the plaintiff pleads factual content that allows the court to draw the reasonable
15 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 16 678. 17 Unless it is absolutely clear that no amendment can cure the defects of a 18 complaint, a pro se litigant is entitled to notice of the complaint’s deficiencies and an 19 opportunity to amend prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 20 F.3d 245, 248 (9th Cir.1995). Leave to amend need not be granted “where the 21 amendment would be futile or where the amended complaint would be subject to 22 dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 23 A. Subject Matter Jurisdiction
24 1 A federal court has an obligation to determine whether the requirements of 2 federal subject matter jurisdiction have been met, even if the parties do not bring this 3 issue to the attention of the court. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). 4 Federal subject-matter jurisdiction exists under: (1) diversity jurisdiction and (2) federal-
5 question jurisdiction. U.S. Const. Art. III §2, cl. 1; 28 U.S.C. §§ 1331, 1332. 6 If there is no basis for federal subject matter jurisdiction, the court must dismiss 7 the complaint in its entirety. Arbaugh, 546 U.S. 500 at 514. “Lack of federal jurisdiction 8 cannot be waived or be overcome by an agreement of the parties.” Mitchell v. Maurer, 9 293 U.S. 237, 244 (1934); see also, Steel Co. v. Citizens for a Better Environment, 523 10 U.S. 83, 94-95 (1998) (“the first and fundamental” question that a federal court must ask 11 is whether it has Article III jurisdiction, and if the court makes a decision in a case where 12 the court lacks jurisdiction “a court [would] act ultra vires”). 13 Plaintiff indicates that this Court has both federal question and diversity 14 jurisdiction over her claim. Dkt. 1-1 at 3. The only bases for federal question jurisdiction
15 that plaintiff cites are the Ninth Amendment to the Constitution and the Supremacy 16 Clause of Article Six of the Constitution, however, plaintiff fails to state any causes of 17 action under either of these principles. Matters of federal question arise under federal 18 law only when the federal questions arise on the face of the well-pleaded complaint. 19 Caterpillar v.
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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 TIFFANY RECINOS, Case No. 3:23-cv-5546-RJB 7 Plaintiff, v. ORDER TO SHOW CAUSE OR 8 FILE AMENDED COMPLAINT JUAN RECINOS, 9 Defendants. 10
11 This matter comes before the Court on plaintiff’s motion to proceed in forma 12 pauperis. Dkt. 1. This matter has been referred for review of the IFP application to the 13 undersigned Magistrate Judge. Mathews, Sec’y of H.E.W. v. Weber, 423 U.S. 261 14 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4). For reasons discussed 15 below, plaintiff is ordered to show cause why this cause of action should not be 16 dismissed or file an amended complaint on or before July 21, 2023. 17 FACTUAL BACKGROUND 18 Plaintiff, proceeding pro se, brings this action against defendant, Juan Recinos, 19 whom plaintiff identifies as the biological father to her four children. Dkt. 1-1. Plaintiff 20 also names Washington State, Shannon Barry, an employee of “DSHS” and Abigail 21 Hughes, an employee of “DCS”, as defendants. Id. Elsewhere in the complaint, plaintiff 22 names the Washington State Department of Corrections, Washington State Department 23 of Social and Health Services, and the Washington State Department of Child Support 24 1 as defendants. Id. at 2-5. Plaintiff alleges the basis for jurisdiction as both federal 2 question and diversity jurisdiction. Id. at 3. 3 Plaintiff claims that she is owed $3.25 billion U.S. Dollars because her 4 inheritance was stolen. Id. at 5. Specifically, plaintiff states that Juan Recinos stole the
5 inheritance she received from her grandparents after she was involved in a car 6 accident, and she appears to challenge the role of various Washington State 7 departments in the probate proceedings. Id. at 6. She is seeking the enforcement of 8 child support, back payments, alimony, and 100 percent of her inheritance. Id. at 7. 9 Plaintiff attaches 49 pages of documentation in support of her claim, including a 2011 10 Order prohibiting contact issued in Pierce County Superior Court, a 2023 Order denying 11 a motion to rescind the no contact order issued in Pierce County Superior Court, a 2022 12 petition for writ for execution and writ for garnishment filed by plaintiff in Pierce County 13 Superior Court, a 2011 parenting plan signed by the Pierce County Superior Court, the 14 Last Will and Testament of Maxene Peterson filed in the Pierce County Clerk’s office in
15 2008, the Last Will and Testament of Keith Peterson filed in the Pierce County Clerk’s 16 Office in 2010, two 2023 notices from the Washington State Department of Social and 17 Health Services Division of Child Support declining to review the 2011 support order, 18 and a letter from the Social Security Administration informing plaintiff about her social 19 security benefits. Id. at 8-57. 20 DISCUSSION 21 The district court may permit indigent litigants to proceed IFP upon completion of 22 a proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad 23
24 1 discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 2 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). 3 Moreover, a court should “deny leave to proceed in forma pauperis at the outset 4 if it appears from the face of the proposed complaint that the action is frivolous or
5 without merit.” Tripati v. First Nat’l Bank & Tr., 821 F.2d 1368, 1369 (9th Cir. 1987) 6 (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis 7 complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Tripati, 821 F.2d 8 at 1370 (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. 9 Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). 10 A pro se plaintiff’s complaint is to be construed liberally, but like any other 11 complaint it must nevertheless contain factual assertions sufficient to support a facially 12 plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 13 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when 14 “the plaintiff pleads factual content that allows the court to draw the reasonable
15 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 16 678. 17 Unless it is absolutely clear that no amendment can cure the defects of a 18 complaint, a pro se litigant is entitled to notice of the complaint’s deficiencies and an 19 opportunity to amend prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 20 F.3d 245, 248 (9th Cir.1995). Leave to amend need not be granted “where the 21 amendment would be futile or where the amended complaint would be subject to 22 dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 23 A. Subject Matter Jurisdiction
24 1 A federal court has an obligation to determine whether the requirements of 2 federal subject matter jurisdiction have been met, even if the parties do not bring this 3 issue to the attention of the court. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). 4 Federal subject-matter jurisdiction exists under: (1) diversity jurisdiction and (2) federal-
5 question jurisdiction. U.S. Const. Art. III §2, cl. 1; 28 U.S.C. §§ 1331, 1332. 6 If there is no basis for federal subject matter jurisdiction, the court must dismiss 7 the complaint in its entirety. Arbaugh, 546 U.S. 500 at 514. “Lack of federal jurisdiction 8 cannot be waived or be overcome by an agreement of the parties.” Mitchell v. Maurer, 9 293 U.S. 237, 244 (1934); see also, Steel Co. v. Citizens for a Better Environment, 523 10 U.S. 83, 94-95 (1998) (“the first and fundamental” question that a federal court must ask 11 is whether it has Article III jurisdiction, and if the court makes a decision in a case where 12 the court lacks jurisdiction “a court [would] act ultra vires”). 13 Plaintiff indicates that this Court has both federal question and diversity 14 jurisdiction over her claim. Dkt. 1-1 at 3. The only bases for federal question jurisdiction
15 that plaintiff cites are the Ninth Amendment to the Constitution and the Supremacy 16 Clause of Article Six of the Constitution, however, plaintiff fails to state any causes of 17 action under either of these principles. Matters of federal question arise under federal 18 law only when the federal questions arise on the face of the well-pleaded complaint. 19 Caterpillar v. Williams, 482 U.S. 386, 392 (1987). 20 Furthermore, it does not appear that plaintiff’s claim for diversity jurisdiction is 21 availing. First, all but one of the defendants named in plaintiff’s complaint are 22 Washington State, departments of Washington State, and apparent employees of these 23
24 1 departments, and plaintiff indicates that the remaining defendant’s “citizenship” is 2 currently unknown. See Dkt. 1-1 at 5. 3 However, even if Juan Recinos were determined to be a citizen of a state other 4 than Washington for the purpose of diversity jurisdiction, to the extent that plaintiff seeks
5 this Court to manage issues arising out of alimony or child custody disputes, the 6 diversity between the parties would not confer jurisdiction because these claims fall into 7 the domestic relations exception to federal diversity jurisdiction. Bailey v. MacFarland, 5 8 F.4th 1092, 1095 (9th Cir. 2021); see also Marshall v. Marshall, 547 U.S. 293, 307 9 (2006). Additionally, to the extent that plaintiff seeks this Court to probate her 10 grandparents’ wills or administer the estates of her grandparents, the diversity between 11 the parties would not confer jurisdiction because these claims fall into the probate 12 exception to federal diversity jurisdiction. Goncalves By & Through Goncalves v. Rady 13 Children's Hosp. San Diego, 865 F.3d 1237, 1252 (9th Cir. 2017); see also Marshall v. 14 Marshall, 547 U.S. 293, 311 (2006)
15 CONCLUSION 16 Due to the deficiencies described above, it appears that plaintiff’s complaint is 17 subject to dismissal. Plaintiff may show cause why the complaint should not be 18 dismissed or may file a proposed amended complaint to cure, if possible, the 19 deficiencies noted herein, on or before July 21, 2023. 20 If an amended complaint is filed, it must be legibly written or retyped in its entirety 21 and contain the same case number. Any cause of action alleged in the original 22 complaint that is not alleged in the amended complaint is waived. Forsyth v. Humana, 23
24 1 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds, Lacey v. 2 Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012). 3 The Court will screen the amended complaint to determine whether it states a 4 claim. If the amended complaint is not timely filed or fails to adequately address the
5 issues raised herein, the undersigned will recommend dismissal of this action as 6 frivolous under 28 U.S.C. § 1915. 7 The Clerk is directed to send plaintiff, a copy of this Order and the Pro Se 8 information sheet, and to re-note plaintiff’s IFP application for July 21, 2023. 9 10 Dated this 5th day of July, 2023. 11 12 A 13 Theresa L. Fricke 14 United States Magistrate Judge
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