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Sandoval v. Tear

November 5, 2009

GRACE L. SANDOVAL, PLAINTIFF,
v.
HARRY E. TEAR, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Motion for Leave to Proceed in Forma Pauperis and the Motion to Appoint Counsel. (Doc. # 2, 3).

BACKGROUND

On November 3, 2009, Plaintiff Grace L. Sandoval, a nonprisoner proceeding pro se, initiated this action by filing the Complaint. (Doc. # 1). On November 3, 2009, Plaintiff also filed the Motion for Leave to Proceed In Forma Pauperis ("Motion to Proceed IFP"), and the Motion to Appoint Counsel. (Doc. # 2, 3).

ANALYSIS

I. Motion to Proceed IFP

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

In her affidavit accompanying the Motion to Proceed IFP, Plaintiff states that she is not employed, receives unemployment insurance payments of $40 per week, has a checking account with a balance of $480, owns a 2002 Honda Civic, and does not have any other significant assets such as real estate, stocks, bonds or securities. (Doc. # 2 at 2-3). Plaintiff states that she owes $5,000 to the "U.S. Department of Education" and $700 to "Cash Collections." (Doc. # 2 at 3). The Court has reviewed Plaintiff's affidavit of assets and finds it is sufficient to show that Plaintiff is unable to pay the fees or post securities required to maintain this action. The Court grants the Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a).

II. Subject-Matter Jurisdiction

Federal courts are courts of limited jurisdiction, and possess only that power authorized by the Constitution and federal statute. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This Court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States," and "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States." 28 U.S.C. §§ 1331, 1332. "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3). A court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action. See Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002).

The Complaint appears to allege that Defendant owes Plaintiff $2,500, related to a "worker's compensation appeals board compromise." (Doc. # 1 at 1). Plaintiff does not allege a basis for federal jurisdiction for this claim. For this reason, the Complaint must be dismissed without prejudice.

III. Initial Screening Pursuant to 28 U.S.C. § 1915(e)(2)(b)

After granting IFP status, the Court must dismiss the case if the case "fails to state a claim on which relief may be granted" or is "frivolous." 28 U.S.C. § 1915(e)(2)(B).

The standard used to evaluate a motion to dismiss is a liberal one, particularly when the action has been filed pro se. See Estelle v. Gamble, 429 U.S. 97, 97 (1976). However, even a "liberal interpretation ... may not supply elements of the claim that were not initially pled." Ivey v. ...


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