The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff William Rouse*fn1 requests leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). The Ninth Circuit has indicated that leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) is properly granted only when the plaintiff has demonstrated poverty and has presented a claim that is not factually or legally frivolous within the definition of § 1915(e)(2)(B).*fn2 O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). Thus, the court "may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Id. (quoting Reece v. Washington, 310 F.2d 139, 140 (9th Cir. 1962); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.), cert. denied, 382 U.S. 896 (1965)). An in forma pauperis complaint is frivolous if it has "no arguable basis in fact or law." O'Loughlin, 920 F.2d at 617; Tripati, 821 F.2d at 1379; Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
The Supreme Court holds that dismissal prior to service under 28 U.S.C. § 1915(e)(2)(B) is appropriate where no legal interest is implicated, i.e., the claim is premised on a meritless legal theory, or clearly lacking any factual basis. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Section 1915(e)(2)(B) accords judges the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 34 (1992). Because a dismissal pursuant to § 1915(e)(2)(B) is not a dismissal on the merits, but rather an exercise of the court's discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. Id.
Plaintiff makes the following allegations in his complaint. Defendants Department of the Army (Army), Oakland Base Reuse Authority (OBRA), Operation Dignity, City of Oakland, Alameda County Board of Supervisors, Alex McElree and William Kennedy sponsored and operated a Homeless and Emergency Shelter in West Oakland during the 2003-2004 winter season. Plaintiff was an occupant of certain real property situated at the West Oakland Military Base located in Oakland, California described as Transitional Housing and Shelter at the Oakland Military Base (the shelter).
In October, 2003, Defendants allowed an excessive amount of water and roof seepage to leak from the shelter roof onto the shelter floor, beds and residents. Also in October, 2003, a shelter resident used the shelter microwave oven for drying or refining a large sample of marijuana. The odor of marijuana permeated the shelter for several days which caused great discomfort and mental stress to the shelter residents.
Based on these allegations, Plaintiff brings the following causes of action: (1) nuisance; (2) battery, based on contact with the water seepage; (3) negligence against operator and manager Defendants based on failure to repair the shelter; (4) negligence against the sponsor and funder Defendants based on breach of duty to maintain the shelter in good condition; (5) constructive eviction by allowing the shelter to fall into a hazardous and dilapidated condition; (6) wrongful eviction; (7) fraud based on Defendants' false representations that a warm, dry, safe and non-hazardous shelter would be made available from September, 2003 through May, 2003; (8) intentional infliction of emotional distress; (9) breach of contract; (10) California Welfare & Institutions Code violations; (11) California Government Code violations; (11) against Federal Emergency Management Agency (FEMA) violations of the United States Constitution based on FEMA's denial of the City of Oakland's application to obtain funds to operate and maintain the shelter. Plaintiff seeks general damages of $3,000,000, lost wages and economic damages of $900,000 and punitive damages in the amount of $9,000,000.
United States district courts are courts of limited jurisdiction. Such courts have subject matter jurisdiction only if the case or controversy before them fits into one of the particular categories of jurisdiction enacted by Congress. Hence, as a threshold matter, Rule 8(a)(1) of the Federal Rules of Civil Procedure requires that pleadings setting forth a claim for relief contain "a short and plain statement of the grounds upon which the court's jurisdiction depends." Fed. R. Civ. P. 8(a)(1). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).
In his complaint, Plaintiff alleges that jurisdiction in federal court is predicated on 28 U.S.C. § 1332. Plaintiff is incorrect about the source of federal jurisdiction. Section 1332 authorizes federal courts to exercise jurisdiction over civil actions in which there is a diversity of citizenship between the parties. According to Plaintiff's complaint all Defendants, with the exception of the two federal Defendants, are California citizens or agencies. Because Plaintiff is also a citizen of California, diversity jurisdiction does not exist.
With the exception of the constitutional claim against FEMA, which as discussed below is dismissed, the complaint contains only State causes of action. Therefore, this Court lacks jurisdiction under 28 U.S.C. § 1331 which provides federal courts with jurisdiction over civil actions arising under the United States Constitution and laws or treaties of the United States.
Because two of the named Defendants, the Army and FEMA, are agencies of the United States, federal jurisdiction may be predicated upon 28 U.S.C. § 1346(b) or the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2675. Section 1346(b) provides that district courts have jurisdiction over any "claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for . . . damages in cases not sounding in tort." For tort causes of action against the United States, jurisdiction is predicated upon the FTCA, which requires administrative exhaustion as a jurisdictional prerequisite to bringing a claim in federal court. 28 U.S.C. § 2675(a).
I. Claims Against the Army
Plaintiff's causes of action against the Army are negligence, constructive eviction, eviction, fraud, intentional infliction of emotional distress and breach of contract. The tort causes of action of negligence, fraud, and intentional infliction of emotional distress must be dismissed because Plaintiff has not alleged that he has exhausted administrative remedies against the Army. These are dismissed with leave to amend for Plaintiff to allege, if he truthfully can do so, ...