1 2 3 4 5 6 7 10 11 SERENA RUIZ, Case No. 2:26-cv-00289-DAD-CSK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. (ECF Nos. 1, 2) 15 Defendant. 16 17 Plaintiff Serena Ruiz is representing herself in this action and seeks leave to 18 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) For the 19 reasons that follow, the Court recommends Plaintiff’s IFP application be denied, and the 20 Complaint be dismissed without leave to amend. 22 28 U.S.C. § 1915(a) provides that the court may authorize the commencement, 23 prosecution or defense of any suit without prepayment of fees or security “by a person 24 who submits an affidavit stating the person is “unable to pay such fees or give security 25 therefor.” This affidavit is to include, among other things, a statement of all assets the 26 person possesses. Id. The IFP statute does not itself define what constitutes insufficient 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 28 Civ. P. 72, and Local Rule 302(c). 1 assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In Escobedo, 2 the Ninth Circuit stated that an affidavit in support of an IFP application is sufficient 3 where it alleges that the affiant cannot pay court costs and still afford the necessities of 4 life. Id. “One need not be absolutely destitute to obtain benefits of the in forma pauperis 5 statute.” Id. Nonetheless, a party seeking IFP status must allege poverty “with some 6 particularity, definiteness and certainty.” Id. According to the United States Department 7 of Health and Human Services, the current poverty guideline for a household of one (not 8 residing in Alaska or Hawaii) is $15,960.00 and $21,640 for a household of two. See 9 U.S. Dpt. Health & Human Service (available at https://aspe.hhs.gov/poverty-guidelines). 10 Here, Plaintiff has made the required showing under 28 U.S.C. § 1915(a). See 11 ECF No. 2. However, the Court recommends Plaintiff’s IFP application be denied 12 because the action is facially frivolous or without merit because it fails to state a claim 13 and lacks subject matter jurisdiction. “‘A district court may deny leave to proceed in 14 forma pauperis at the outset if it appears from the face of the proposed complaint that 15 the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 16 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Tr., 821 F.2d 1368, 1370 (9th Cir. 17 1987)); see also McGee v. Dep’t of Child Support Servs., 584 Fed. App’x 638 (9th Cir. 18 2014) (“the district court did not abuse its discretion by denying McGee's request to 19 proceed IFP because it appears from the face of the amended complaint that McGee's 20 action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) 21 (“It is the duty of the District Court to examine any application for leave to proceed in 22 forma pauperis to determine whether the proposed proceeding has merit and if it 23 appears that the proceeding is without merit, the court is bound to deny a motion 24 seeking leave to proceed in forma pauperis.”). Because it appears from the face of the 25 Complaint that this action is frivolous or without merit as discussed in more detail below, 26 the Court recommends denying Plaintiff’s IFP motion. 27 / / / 28 / / / 2 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 3 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to 4 state a claim on which relief may be granted,” or “seeks monetary relief against a 5 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 6 203 F.3d 1122, 1126-27 (2000) (en banc). A claim is legally frivolous when it lacks an 7 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 8 reviewing a complaint under this standard, the court accepts as true the factual 9 allegations contained in the complaint, unless they are clearly baseless or fanciful, and 10 construes those allegations in the light most favorable to the plaintiff. See Neitzke, 490 11 U.S. at 327; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 12 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011). 13 Pleadings by self-represented litigants are liberally construed. Hebbe v. Pliler, 627 14 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even post-Iqbal). 15 However, the court need not accept as true conclusory allegations, unreasonable 16 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 17 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does 18 not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 To state a claim on which relief may be granted, the plaintiff must allege enough 21 facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A 22 claim has facial plausibility when the plaintiff pleads factual content that allows the court 23 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 24 Iqbal, 556 U.S. at 678. A pro se litigant is entitled to notice of the deficiencies in the 25 complaint and an opportunity to amend unless the complaint’s deficiencies could not be 26 cured by amendment. See Lopez, 203 F.3d at 1130-31; Cahill v. Liberty Mut. Ins. Co., 80 27 F.3d 336, 339 (9th Cir. 1996). 28 / / / 2 A. Lack of Subject Matter Jurisdiction 3 Federal courts are courts of limited jurisdiction and may hear only those cases 4 authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 5 Jurisdiction is a threshold inquiry, and “[f]ederal courts are presumed to lack jurisdiction, 6 ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 7 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 8 (1986)); see Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 9 F.2d 1376, 1380 (9th Cir. 1988).
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1 2 3 4 5 6 7 10 11 SERENA RUIZ, Case No. 2:26-cv-00289-DAD-CSK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. (ECF Nos. 1, 2) 15 Defendant. 16 17 Plaintiff Serena Ruiz is representing herself in this action and seeks leave to 18 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) For the 19 reasons that follow, the Court recommends Plaintiff’s IFP application be denied, and the 20 Complaint be dismissed without leave to amend. 22 28 U.S.C. § 1915(a) provides that the court may authorize the commencement, 23 prosecution or defense of any suit without prepayment of fees or security “by a person 24 who submits an affidavit stating the person is “unable to pay such fees or give security 25 therefor.” This affidavit is to include, among other things, a statement of all assets the 26 person possesses. Id. The IFP statute does not itself define what constitutes insufficient 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 28 Civ. P. 72, and Local Rule 302(c). 1 assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In Escobedo, 2 the Ninth Circuit stated that an affidavit in support of an IFP application is sufficient 3 where it alleges that the affiant cannot pay court costs and still afford the necessities of 4 life. Id. “One need not be absolutely destitute to obtain benefits of the in forma pauperis 5 statute.” Id. Nonetheless, a party seeking IFP status must allege poverty “with some 6 particularity, definiteness and certainty.” Id. According to the United States Department 7 of Health and Human Services, the current poverty guideline for a household of one (not 8 residing in Alaska or Hawaii) is $15,960.00 and $21,640 for a household of two. See 9 U.S. Dpt. Health & Human Service (available at https://aspe.hhs.gov/poverty-guidelines). 10 Here, Plaintiff has made the required showing under 28 U.S.C. § 1915(a). See 11 ECF No. 2. However, the Court recommends Plaintiff’s IFP application be denied 12 because the action is facially frivolous or without merit because it fails to state a claim 13 and lacks subject matter jurisdiction. “‘A district court may deny leave to proceed in 14 forma pauperis at the outset if it appears from the face of the proposed complaint that 15 the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 16 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Tr., 821 F.2d 1368, 1370 (9th Cir. 17 1987)); see also McGee v. Dep’t of Child Support Servs., 584 Fed. App’x 638 (9th Cir. 18 2014) (“the district court did not abuse its discretion by denying McGee's request to 19 proceed IFP because it appears from the face of the amended complaint that McGee's 20 action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) 21 (“It is the duty of the District Court to examine any application for leave to proceed in 22 forma pauperis to determine whether the proposed proceeding has merit and if it 23 appears that the proceeding is without merit, the court is bound to deny a motion 24 seeking leave to proceed in forma pauperis.”). Because it appears from the face of the 25 Complaint that this action is frivolous or without merit as discussed in more detail below, 26 the Court recommends denying Plaintiff’s IFP motion. 27 / / / 28 / / / 2 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 3 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to 4 state a claim on which relief may be granted,” or “seeks monetary relief against a 5 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 6 203 F.3d 1122, 1126-27 (2000) (en banc). A claim is legally frivolous when it lacks an 7 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 8 reviewing a complaint under this standard, the court accepts as true the factual 9 allegations contained in the complaint, unless they are clearly baseless or fanciful, and 10 construes those allegations in the light most favorable to the plaintiff. See Neitzke, 490 11 U.S. at 327; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 12 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011). 13 Pleadings by self-represented litigants are liberally construed. Hebbe v. Pliler, 627 14 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even post-Iqbal). 15 However, the court need not accept as true conclusory allegations, unreasonable 16 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 17 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does 18 not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 To state a claim on which relief may be granted, the plaintiff must allege enough 21 facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A 22 claim has facial plausibility when the plaintiff pleads factual content that allows the court 23 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 24 Iqbal, 556 U.S. at 678. A pro se litigant is entitled to notice of the deficiencies in the 25 complaint and an opportunity to amend unless the complaint’s deficiencies could not be 26 cured by amendment. See Lopez, 203 F.3d at 1130-31; Cahill v. Liberty Mut. Ins. Co., 80 27 F.3d 336, 339 (9th Cir. 1996). 28 / / / 2 A. Lack of Subject Matter Jurisdiction 3 Federal courts are courts of limited jurisdiction and may hear only those cases 4 authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 5 Jurisdiction is a threshold inquiry, and “[f]ederal courts are presumed to lack jurisdiction, 6 ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 7 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 8 (1986)); see Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 9 F.2d 1376, 1380 (9th Cir. 1988). Without jurisdiction, the district court cannot decide the 10 merits of a case or order any relief and must dismiss the case. See Morongo, 858 F.2d 11 at 1380. A federal court’s jurisdiction may be established in one of two ways: actions 12 arising under federal law or those between citizens of different states in which the 13 alleged damages exceed $75,000. 28 U.S.C. §§ 1331, 1332. “Subject-matter jurisdiction 14 can never be waived or forfeited,” and “courts are obligated to consider sua sponte” 15 subject matter jurisdiction even when not raised by the parties. Gonzalez v. Thaler, 565 16 U.S. 134, 141 (2012). 17 The Complaint does not establish the Court’s subject matter jurisdiction. See 18 Compl. (ECF No. 1). The Complaint, in its entirety, states the following: “Defendant, what 19 others described as kind-hearted, failed to remain the same when doing his job, [w]hen 20 adjudicating issues, he showed tardiness, leaving things undecided[.] Plaintiff requests 21 an issuance of mandamus for Brian Gottlieb to resolve the backlog as soon as possible, 22 which this Court has jurisdiction.” Id. It is clear from review of the Complaint that there is 23 no federal question raised. Moreover, the Complaint also fails to establish diversity 24 jurisdiction. Plaintiff does not allege any amount in controversy or establish complete 25 diversity of citizenship. See Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th 26 Cir. 2001) (“Section 1332 requires complete diversity of citizenship; each of the plaintiffs 27 must be a citizen of a different state than each of the defendants.”). Because there is no 28 diversity of citizenship established or amount in controversy alleged here, the Court finds 1 that it also lacks subject matter jurisdiction based on diversity jurisdiction. Therefore, the 2 Court recommends this action be dismissed because the Court lacks subject matter 3 jurisdiction over this action. 4 B. Failure to Comply with Federal Rule of Civil Procedure 8 5 Plaintiff’s Complaint also does not contain a short and plain statement of a claim 6 as required by Federal Rule of Civil Procedure 8. In order to give fair notice of the claims 7 and the grounds on which they rest, a plaintiff must allege with at least some degree of 8 particularity overt acts by specific defendants which support the claims. See Kimes v. 9 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Here, the Complaint does not contain facts 10 supporting any cognizable legal claim against Defendant. The Complaint consists of 11 vague and conclusory allegations that fail to raise or establish a cause of action. 12 Because the Complaint is unintelligible, granting leave to amend in this case 13 would not be fruitful. Although the Federal Rules adopt a flexible pleading policy, even a 14 pro se litigant’s complaint must give fair notice and state the elements of a claim plainly 15 and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). 16 The Complaint therefore fails to state a claim on which relief may be granted and is 17 subject to dismissal. See McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996) 18 (affirming dismissal of complaint where “one cannot determine from the complaint who is 19 being sued, for what relief, and on what theory, with enough detail to guide discovery”). 20 C. Leave to Amend 21 In considering whether leave to amend should be granted, the Court considers 22 that Plaintiff’s Complaint lacks subject matter jurisdiction and does not comply with the 23 requirements of Federal Rule of Civil Procedure 8. Based on these deficiencies, it 24 appears granting leave to amend would be futile. The Complaint should therefore be 25 dismissed without leave to amend. See Lopez, 203 F.3d at 1130-31; Cato v. United 26 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 27 / / / 28 / / / 1 | IV. CONCLUSION 2 Based upon the findings above, it is RECOMMENDED that: 3 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) be DENIED; 4 2. Plaintiffs Complaint (ECF No. 1) be DISMISSED without leave to amend; 5 and 6 3. The Clerk of the Court be directed to CLOSE this case. 7 These findings and recommendations are submitted to the United States District 8 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 9 | 14 days after being served with these findings and recommendations, any party may file 10 | written objections with the Court and serve a copy on all parties. This document should 11 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 12 | reply to the objections shall be served on all parties and filed with the Court within 14 13 | days after service of the objections. Failure to file objections within the specified time 14 | may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 15 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 16 17 || Dated: April 2, 2026 Cc (i s □□ 49 UNITED STATES MAGISTRATE JUDGE 20 || 4, ruizo289.26 21 22 23 24 25 26 27 28