Opinion
21-cv-05293-LB
08-27-2021
THERESA M. ROSS, Plaintiff, v. JHON ARENESTOS, Defendant.
ORDER REASSIGNING CASE; REPORT AND RECOMMENDATION TO DISMISS COMPLAINT
RE: ECF NO. 1
LAUREL BEELER UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
Plaintiff Theresa M. Ross, who represents herself, sued defendant Jhon Arenestos, claiming that he stole government documents from her eight years ago. The plaintiff filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. The court denied the plaintiff's application without prejudice because she did not list her income or assets fully and screened the complaint for minimal legal viability in an order that notified the plaintiff that she had not established jurisdiction or any legally cognizable claim. 28 U.S.C. § 1915(e)(2)(B). The court gave her leave to file an application and complaint by August 9, 2021. She did not do so. Under Williams v. King, the case must be reassigned because the parties, including the non-appearing defendant, have not consented to the undersigned's jurisdiction. 875 F.3d 500, 503-05 (9th Cir. 2017). The court directs the Clerk of Court to reassign the case to a district judge and recommends dismissal of the case for failing to file an amended application to proceed in forma pauperis or an amended complaint that states a claim.
Compl. - ECF No. 1 at 5; Order - ECF No. 5 at 2. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents.
Appl. - ECF No. 2.
Order - ECF No. 5.
STATEMENT
In her complaint, the plaintiff alleges that eight years ago, the “San Francisco Federal Building” sent her a “government document” that was stolen by the defendant. She also alleges that the defendant is harassing and extorting her with the document. She demands that the defendant give her back her allegedly stolen documents and “stop starting violence for [her] family.” The court issued a screening order identifying the complaint's deficiencies (because there were no facts establishing diversity or federal-question jurisdiction and there were no identifiable claims) and gave her leave to file an amended complaint. The plaintiff also filed an incomplete financial affidavit that said that she received Social Security and identified a bank account with “trillions of dollars.” That amount seemed unlikely, but the court directed her to identify her assets completely in an amended application or to pay the $402 filing fee. The deadline for filing the amended complaint and the application was August 9, 2021.
Compl. - ECF No. 1 at 5.
Id. at 8.
Order - ECF No. 5.
The plaintiff did not file an amended complaint or application. On August 25, 2021, she filed a five-page handwritten single-spaced letter referencing the stolen documents, Jhon Arenestos, and the time period “8-9 years ago, ” when the documents apparently were returned to an address in San Francisco. She alleges that (with others) he stole them again. “They” have been living in her home, driving her cars, trying to open bank accounts, and have harmed, threatened, and harassed her and her family. She contends that they used people to rape, sexually stalk, and harass her since she was a teen and continue to do so today. She mentions their efforts to pimp her father, brother, and child, begs for help, and mentions that the police are supposed to provide 24-hour surveillance because they are a “world leading family.” She vows to commit murder, apparently because her family is in immediate danger.
Letter - ECF No. 10. A second copy of the letter is attached to ECF No. 10.
On August 26, 2021, the plaintiff filed a TRO for a restraining order against (at least in part) people identified in her August 25 letter, including family members. She mentions sexual harassment and sexual touching (somewhat graphically) and says that the people should not be allowed in her restaurants, business, cars, homes, or housed near her true family (including her brother in jail).
TRO - ECF No. 11.
ANALYSIS
1. IFP Affidavit
“Under 28 U.S.C. § 1915, a district court may authorize the commencement of a civil action IFP if it is satisfied that the plaintiff cannot pay the filing fees necessary to pursue the action.” La Douer v. U.C.S.F., No. 15-cv-02214-MEJ, 2015 WL 4323665, at *2 (N.D. Cal. July 15, 2015) (citing 28 U.S.C. § 1915(a)(1)). “The policy for allowing a plaintiff to proceed IFP is to protect litigants from abandoning ‘what may be a meritorious claim in order to spare himself complete destitution.'” Id. (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 340 (1948)). “However, ‘court permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not violate the applicant's right to due process.'” Id. (internal brackets omitted) (quoting Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)).
“To determine IFP eligibility, an applicant must ‘submit an affidavit that includes a statement of all assets' showing that the applicant ‘is unable to pay such fees or give security therefor.'” Id. (internal brackets omitted) (quoting 28 U.S.C. § 1915(a)(1)). “To satisfy this requirement, ‘an affidavit of poverty is sufficient which states that one cannot because of his or her poverty pay or give security for costs and still be able to provide himself and dependents with the necessities of life.'” Id. (internal brackets and ellipsis omitted) (quoting Adkins, 335 U.S. at 339). “The Ninth Circuit has held that a plaintiff seeking IFP status must allege poverty ‘with some particularity, definiteness and certainty.'” Id. (some internal quotation marks omitted) (quoting Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015)). “The Court has discretion to make a factual inquiry into an IFP applicant's financial status and to deny the application where the applicant is unable or unwilling to verify his or her poverty.” Id. (citing United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). Courts have denied IFP status where plaintiffs have provided incomplete information about their financial status or failed to clearly disclose their income and assets. See Id. at *2-3 (citing cases).
Here, the plaintiff identified a bank account but did not say - at least plausibly - what was in it. Because the plaintiff did not file an amended application or pay the $402 filing fee, the case can be dismissed on this ground.
2. Sua Sponte Screening - 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before directing the United States Marshals to serve the complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127. “The language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
“Frivolousness” within the meaning of the in forma pauperis standard of 28 U.S.C. § 1915(d) and failure to state a claim under Rule 12(b)(6) are distinct concepts.
“‘A complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.'” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke, 490 U.S. at 325). The definition of frivolousness “embraces not only the arguable legal conclusion, but also the fanciful factual allegation.” Neitzke, 490 U.S. at 325. When determining whether to dismiss a complaint as “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(i), the court has “‘the unusual power to pierce the veil of the complaint's factual allegations, '” meaning that the court “is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32 (quoting Nietzke, 490 U.S. at 327). Frivolous claims include “‘claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.'” Id. (quoting Nietzke, 490 U.S. at 328). “An in forma pauperis complaint may not be dismissed . . . simply because the court finds the plaintiff's allegations unlikely.” Id. at 33. But “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. As the Ninth Circuit has explained, frivolous litigation “is not limited to cases in which a legal claim is entirely without merit. . . . [A] person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1060-61 (9th Cir. 2007).
Under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain “detailed factual allegations, ” but the plaintiff must “provide the grounds of his entitlement to relief, ” which “requires more than labels and conclusions”; a mere “formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555 (cleaned up).
In determining whether to dismiss a complaint under Rule 12(b)(6), the court is ordinarily limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court cannot assume, however, that “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro se plaintiff need only provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns, 413 F.3d at 1043. He need not plead specific legal theories so long as sufficient factual averments show that he may be entitled to some relief. Id. at 1041.
When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d at 1130 (cleaned up).
As the court said in the earlier screening order, the complaint (or any of the subsequent papers) do not allege specific facts or laws establishing any claims. This is insufficient to state a claim. Tannenbaum v. Cal. Dep't of Corrs. & Rehab., C 18-6770 WHA, 2019 WL 469975, at *1 (N.D. Cal. Feb. 4, 2019) (Although “specific facts are not necessary, ” the pleading must “give the defendant fair notice of what the claim is and the grounds upon which it rests”) (cleaned up). Considered collectively, the plaintiff's filed documents contain fantastic, delusional scenarios. The plaintiff's case also is frivolous. Denton, 504 U.S. at 32.
Also, she has not established jurisdiction. The court advised her of the requirements of federal-question jurisdiction and diversity jurisdiction. Considering the filings collectively, all persons apparently live in California. There are no discernable federal claims.
This is a separate ground for dismissing the complaint.
CONCLUSION
The court recommends dismissal of the complaint and directs the Clerk of Court to reassign the case to a district judge. Any party may serve and file specific written objections to this recommendation within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2); N.D. Cal. L.R. 72-3. Failure to file written objections within the specified time may waive the right to appeal the district court's order.
IT IS SO ORDERED.