Roberts v. Olson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || TINA LOUISE ROBERTS, Case No.: 22-CV-1373 JLS (BLM) 12 Plante) ORDER DETERMINING THAT IN 13 || v. FORMA PAUPERIS STATUS 14 |} CARI OLSON, NML1917532, US Bank; PEAL NOT CONTINUE ON 15 we Milles, Bank Manager; and U.S. 16 ° (ECF Nos. 15, 19) Defendants. 17 18 Presently before the Court is the Ninth Circuit Court of Appeal’s Referral Notice 19 (Referral, ECF No. 19) requesting that this Court determine whether in forma pauperis 20 (“IFP”) status should continue for Plaintiff-Appellant Tina Louise Roberts. See Referral 21 at 1. Having thoroughly reviewed the matter, the Court DETERMINES that the appeal is 22 frivolous and IFP status should not continue on appeal. 23 A litigant who was previously permitted to proceed [FP may maintain such status on 24 appeal unless the district court certifies that the appeal is not taken in good faith or finds 25 that the party is not otherwise entitled to proceed IFP. See Fed. R. App. P. 24(a)(3)(A). 26 Similarly, 28 U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be taken [IFP] if the 27 trial court certifies in writing that it is not taken in good faith.” For purposes of § 1915, an 28 appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490

1 319, 325, 327 (1989); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (stating 2 ||that an indigent appellant is permitted to proceed IFP on appeal only if the appeal would 3 || not be frivolous). 4 Here, Plaintiff-Appellant is appealing this Court’s January 5, 2023, order dismissing 5 || her Third Amended Complaint (“TAC”) with prejudice. See ECF No. 11. The TAC, while 6 ||largely incomprehensible, appears to allege that Plaintiff-Appellant was infected with 7 \| Covid-19 at a U.S. Bank, that one of the bank’s tellers removed money from her account 8 || without permission, and that she was shot by an unidentified individual. See ECF No. 10. 9 || This Court did not reach the question of whether such allegations stated a claim under 10 Federal Rule of Civil Procedure 12(b)(6) because Plaintiff failed, for the fourth time, to 11 |) allege sufficient facts for this Court to exercise subject matter jurisdiction over □□□□□□□□□□□ 12 ||claims. ECF No. 11 at 4-5. As the Court stated in its January 5 order: 13 Federal question jurisdiction extends only in those cases in which 14 a well-pleaded complaint establishes ‘either that federal law creates the cause of action or that the plaintiff's right to relief 15 necessarily depends on a resolution of a substantial question of 16 federal law.’” Easton v. Crossland Mortg. Corp., 114 F.3d 979, 982 (9th Cir. 1997) (citing Franchise Tax Bd. v. Constr. Laborers 17 Vacation Tr., 463 U.S. 1, 27-28 (1983)). “Mere reference to 18 some aspect of federal law in the complaint does not automatically establish federal question jurisdiction.” Hyde v. 19 USAA Fed. Sav. Bank, No. 3:14-CV-04356, 2015 WL 1893149, 0 at *3 (N.D. Tex. Apr. 27, 2015). Here, Plaintiff's TAC simply lists two federal regulations with no relation to her factual 21 allegations and claims this Court has federal question jurisdiction on the basis of those regulations. Such a showing is insufficient 22 ee to establish federal question jurisdiction. 23 Neither may the court exercise diversity jurisdiction over Plaintiff's claims. Diversity jurisdiction requires “that the parties 25 be in complete diversity,” Matheson v. Progressive Specialty Ins. %6 Co., 319 F.3d 1089, 1090 (9th Cir. 2003), meaning “all plaintiffs must have citizenship different than all defendants,” Mireles v. 27 Wells Fargo Bank, N.A., 845 F. Supp. 2d 1034, 1057 (C.D. Cal. 28 2012). Here, Plaintiff's TAC alleges that Plaintiff and three of

1 the named Defendants—Cali Olson, Matt Méilles, and 5 Maglona—are citizens of California. Thus, complete diversity does not exist between the parties, and the Court may not 3 exercise diversity jurisdiction over Plaintiffs claims. 4 Consequently, Plaintiff's allegations lack any arguable basis in law. Moreover, 5 || Plaintiff's allegation that someone infected her with Covid-19 is not a cognizable cause of 6 || action, her allegation that someone at U.S. Bank removed money from her account without 7 || her permission is belied by bank statements that Plaintiff previously filed with this Court, 8 || see ECF No. 8 at 5, and Plaintiff has repeatedly failed to provide sufficient facts to state a 9 || claim for battery or assault in relation to her alleged shooting. Therefore, the Court finds, 10 || pursuant to 28 U.S.C. § 1915(a)(3), that the appeal would not be taken “in good faith,” and 11 |/IFP status should not continue on appeal. 12 The Court DIRECTS the Clerk to notify Plaintiff-Appellant and the Ninth Circui 13 |) Court of Appeals of this order pursuant to Federal Rule of Appellate Procedure 24(a)(4). 14 IT IS SO ORDERED. Dated: January 25, 2023 he it. Jt, ee ithe a 16 on. Janis L. Sammartino 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28