Opinion
CV 22-01848-PHX-DMF
03-20-2023
Verna K. Brown, Plaintiff v. Precious Lavern Brown, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
On October 27, 2022, Plaintiff Verna K. Brown, proceeding pro se, filed a Complaint (Doc. 1). On the same date, Plaintiff also filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), which is a request for leave to proceed in this matter in forma pauperis (“IFP Application”). The Court granted the IFP Application (Doc. 7) and ordered that “service of the Complaint by any means may not proceed until further Court order screening the Complaint and, if appropriate, authorizing service” (Id. at 1). Plaintiff has consented to a United States Magistrate Judge to hear this matter (Doc. 11; see also Docs. 8, 9, 12).
Plaintiff previously filed a “Motion to See a Judge and to Summon Witnesses” (Doc. 6), which was denied without prejudice as premature (Doc. 7 at 2-3). In denying the motion, the Court noted that “this Court does not hear and issue state law injunctions against harassment or orders of protection” and cited A.R.S. §§ 12-1809, 13-3602 (Id. at 2).
The Court previously screened the Complaint and gave Plaintiff an opportunity to file a First Amended Complaint that addresses the Complaint's deficiencies (Doc. 13). Plaintiff has not filed a First Amended Complaint, and the time to do so has passed (Id.).
Thus, it is recommended that the Complaint and this action be dismissed without prejudice.
Before appearances and consent of all defendants, there is not full consent for a Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, pursuant to General Order 21-25, this Report and Recommendation is made to Senior United States District Judge Stephen M. McNamee.
I. SCREENING/REVIEW PURSUANT TO 28 U.S.C. § 1915
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B); Marks v. Solemn, 98 F.3d 494, 495 (9th Cir. 1996); see also Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (28 U.S.C. § 1915(e) “applies to all in forma pauperis complaints,” not merely those filed by prisoners). Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 8(a)(2) provides that a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that lacks such statement fails to state a claim and must be dismissed.
In determining whether a plaintiff fails to state a claim, the court assumes that all factual allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The pertinent question is whether the factual allegations, assumed to be true, “state a claim to relief that is plausible on its face.” Id. (citing Twombly, 550 U.S. at 570).
Where a complaint contains the factual elements of a cause, but those elements are scattered throughout the complaint without any meaningful organization, the complaint does not set forth a “short and plain statement of the claim” for purposes of Fed.R.Civ.P. 8. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988). Thus, a complaint may be dismissed where it lacks a cognizable legal theory, lacks sufficient facts alleged under a cognizable legal theory, or contains allegations disclosing some absolute defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, n.1 (9th Cir. 1997).
To survive dismissal, a complaint must give each defendant “fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). In the absence of fair notice, a defendant “should not be required to expend legal resources to guess which claims are asserted against her or to defend all claims ‘just in case.'” Gregory v. Ariz. Div. of Child Support Enforcement, No. CV11-0372-PHX-DGC, 2011 WL 3203097, at *1 (D. Ariz. July 27, 2011).
Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must “construe the pleadings liberally ... to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Under the pleading standard set by the Supreme Court's decision in Iqbal, however, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Further, “[a] district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam)).
When the court dismisses the complaint of a pro se litigant with leave to amend, the “court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). The court should not, however, advise the litigant how to cure the defects; this type of advice “would undermine district judges' role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004).
II. JURISDICTION
The Court has an independent obligation to determine whether it has subject-matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Pursuant to Fed.R.Civ.P. 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”
This Court is a limited jurisdiction court; this court has no jurisdiction beyond that conferred upon it by federal statute. Brandt v. Bay City Super Mkt., 182 F.Supp. 937, 939 (N.D. Cal. 1960). Fed.R.Civ.P. 8(a)(1) requires that a complaint contain a “short and plain statement of the grounds for the court's jurisdiction.” Further, the party asserting jurisdiction bears the burden of establishing jurisdiction. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). The United States Supreme Court has stated that a federal court must not disregard or evade the limits on its subject matter jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, the Court is obligated to evaluate its subject matter jurisdiction in each case and to dismiss a case when such jurisdiction is lacking. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004); Fed.R.Civ.P. 12(h)(3). Unlike state courts, federal courts only have jurisdiction over a limited number of cases, and those cases usually involve either a question of federal law (federal question jurisdiction) or a significant controversy between citizens of different states (diversity jurisdiction). See 28 U.S.C. §§ 1331, 1332.
A. Federal Question Jurisdiction
For federal question jurisdiction, 28 U.S.C. § 1331 provides that district courts have jurisdiction over “all civil actions that arise under the Constitution, laws, or treaties of the United States.” The federal question jurisdiction statute, 28 U.S.C. § 1331, is applicable only when the plaintiff sues under a federal statute that creates a right of action in federal court. See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 807-12 (1986); see also Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1283 (9th Cir. 1987). For example, a complaint that alleges only a federal constitutional violation, for example, is insufficient. The Court's “limited jurisdiction cannot be invoked so simplistically.” Yokeno v. Mafnas, 973 F.2d 803, 807 (9th Cir. 1992); see also Lippitt v. Raymond James Fin. Servs., 340 F.3d 1033, 1040 (9th Cir. 2003) (quoting Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986)) (it is a “long-settled understanding that the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction”). “[A] complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim ‘arising under the Constitution, laws, or treaties of the United States.'” Merrell Dow Pharm. v. Thompson, 478 U.S. at 817 (quoting 28 U.S.C. § 1331).
B. Diversity Jurisdiction
In 28 U.S.C. §1332, the United States Code specifies the requirements for federal subject matter jurisdiction based on diversity of citizenship. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, the plaintiff must be a resident of a different state than the defendants and the matter in controversy must exceed the sum or value of $75,000, exclusive of interest and costs. See Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
Diversity jurisdiction requires complete diversity, meaning every plaintiff must be diverse from every defendant. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). To establish a party's citizenship in a particular state, a party must prove that the person is “domiciled” in that state. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). A natural person is domiciled in the location in which he or she has established a fixed habitation or abode, and has an intention to remain permanently or indefinitely. Owens v. Huntling, 115 F.2d 160, 162 (9th Cir. 1940) (citations omitted). “[T]he existence of domicile for purposes of diversity is determined as of the time the lawsuit is filed.” Lew, 797 F.2d at 750. “‘Domicile' is not necessarily synonymous with ‘residence,' and one can reside in one place but be domiciled in another.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). A change in domicile requires the physical presence at the new location with an intention to remain there indefinitely. See Williamson v. Osenton, 232 U.S. 619, 624 (1914); Lew, 797 F.2d at 750. A person's old domicile is not lost until a new one is acquired, and there is a presumption in favor of an established domicile as against an allegedly newly acquired one. Lew, 797 F.2d at 750-51.
In addition to full diversity of parties, diversity jurisdiction requires the amount in controversy to exceed $75,000 exclusive of interest and costs. See 28 U.S.C. § 1332(a)(1). When, as here, “the plaintiff originally files in federal court, ‘the amount in controversy is determined from the face of the pleadings.'” Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010) (quoting Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 (9th Cir. 2000)). The Ninth Circuit has explained that:
[t]he amount in controversy alleged by the proponent of federal jurisdiction-typically the plaintiff in the substantive dispute-controls so long as the claim is made in good faith ... [ Crum, 231 F.3d at 1131) ]. “To justify dismissal, it must appear to a legal certainty that the claim is really for less than the jurisdictional amount.” Id. (internal quotation omitted). This is called the “legal certainty” standard, which means a federal court has subject matter jurisdiction unless “upon the face of the complaint, it is obvious that the suit cannot involve the necessary amount.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 292, 58 S.Ct. 586, 82 L.Ed. 845 (1938).Id.; see also Riggins v. Riggins, 415 F.2d 1259, 1269 (9th Cir. 1969) (“The basic rule is that, for jurisdictional purposes, the amount in controversy is measured by the amount of the claim.... This rule is subject to the qualification that the amount of the claim must appear to be in good faith and not fictitiously asserted simply to allege a sum sufficient for federal jurisdiction.”).
III. ANALYSIS
The Complaint (Doc. 1) has multiple deficiencies that prevent it from proceeding forward to service.
First and importantly, the Complaint fails to establish this Court's limited jurisdiction. Based on the allegations in the Complaint, diversity jurisdiction cannot be established given that Plaintiff and both defendants are alleged to be residents of Arizona (Id. at 1-4). Further, the amount in controversy section states that “the statue [sic] are old but states in damages 100,000 a day” and does not reference any legal or factual basis for these statements (Id. at 4). These bare, unsupported allegations do not meet the amount in controversy requirement for diversity jurisdiction.
The federal question jurisdiction box is checked on the Complaint (Doc. 1 at 3), and the basis for such jurisdiction is stated as: “Violation of the (my) 4th-5th and 14thAmendments” (Id.). Yet, the Complaint does not state a claim for a violation of federal law or an adequate basis for federal question jurisdiction. The United States Constitution itself does not invoke federal question jurisdiction and does not create a federal cause of action. See Azul-Pacifico Inc. v. City of L.A., 973 F.2d 704, 705 (9th Cir. 1992) (“Azul II”) (stating that “Plaintiff has no cause of action directly under the United States Constitution”). For claims alleging the violation of constitutional rights by defendants acting under color of state law, a plaintiff must file an action under 42 U.S.C. § 1983. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. § 1983”) (citing Azul II, 973 F.2d at 705). Here, there is no allegation of any of the defendants acting under the color of state law, so a cause of action under 42 U.S.C. § 1983, even if alleged, appears futile.
The Complaint does not fairly put any defendant on notice of the claims asserted, nor does it state a claim upon which relief may be granted. In the “Statement of Claim” portion of the Complaint, the Complaint states that attached to the Complaint is a “brief statement of the report” Plaintiff “wrote to the Government” to which a response was received “showing they were investigating” (Doc. 1 at 4), but there was no attachment to the Complaint. In any event, based on the contents of the Complaint, the undersigned has no confidence that such an attachment would cure the deficiencies noted herein.
In the relief sought section of the Complaint, Plaintiff states that “[s]he knocked out my teeth” and that Plaintiff “lost three apt.'s to vandalism” (Id.). Plaintiff further states that “[s]he continues to stalk my family with threats” and that Plaintiff's car was vandalized (Id.). While these allegations do not overcome the deficiencies above, Plaintiff is againnotified that this Court does not hear and issue state law injunctions against harassment or orders of protection. See A.R.S. §§ 12-1809, 13-3602.
See Doc. 7 at 2-3; Doc. 13 at 8.
The Court previously put Plaintiff on notice of the above Complaint deficiencies (Doc. 13). Despite that it appeared likely futile to allow Plaintiff to file a First Amended Complaint, the Court nevertheless allowed Plaintiff an opportunity to do so (Id.). Plaintiff did not file any First Amended Complaint, and the time has passed for Plaintiff to do so (Id.). The Complaint (Doc. 1) should be dismissed without prejudice and this matter closed because Plaintiff has not cured the fatal deficiencies in the Complaint after having been given sufficient notice of such deficiencies.
IV. CONCLUSION
The Complaint does not invoke the Court's jurisdiction and fails to state a claim upon which relief may be granted. Plaintiff has been given notice of the deficiencies in the Complaint and an opportunity to correct such in an amended complaint. Nevertheless, Plaintiff did not file any First Amended Complaint, and the time has passed for Plaintiff to do so. Therefore, the Complaint (Doc. 1) should be dismissed without prejudice and without leave to amend and this matter closed.
Accordingly, IT IS HEREBY RECOMMENDED that the Complaint (Doc. 1) be dismissed without prejudice and this matter closed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.