UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 26, 2010
GRACE L. SANDOVAL, PLAINTIFF,
T. MOBILE, DEFENDANT.
The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM AND DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS AND FOR APPOINTMENT OF COUNSEL AS MOOT
On July 2, 2010, plaintiff Grace Sandoval ("plaintff"), proceeding pro se, filed a complaint seeking relief against defendant T. Mobile, along with a motion to proceed in forma pauperis and a motion for appointment of counsel. See Docs. # 1-3. 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).
Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any person seeking to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent it is "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 28 U.S.C. § 1915(e)(2) mandates that the Court reviewing a complaint filed pursuant to the in forma pauperis provisions of Section 1915 make and rule on its own motion to dismiss before directing that the complaint be served by the United States Marshal pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d at 1127.
This Court finds the instant complaint fails to state a basis for federal court subject matter jurisdiction, subjecting the complaint to sua sponte dismissal pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. See California Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974)(it is well settled that a court can dismiss a complaint sua sponte for lack of jurisdiction). Plaintiff's complaint alleges that defendant "T. Mobile has not disconnected my telephone cellular number ... [and] has continued to bill" plaintiff even though plaintiff is unemployed and unable to pay for cellular service. Compl. at 1-2. However, plaintiff does not indicate how these facts invoke federal jurisdiction. Although plaintiff checked the "federal question" box on her civil cover sheet, to invoke federal question jurisdiction, the complaint must allege that the "action aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Plaintiff's complaint does not so allege. Thus, absent an averment, federal question jurisdiction is lacking and the complaint must be dismissed pursuant to Rule 12(h)(3).
CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1. The instant complaint is sua sponte DISMISSED for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure;
2. Plaintiff's motion to proceed in forma pauperis is DENIED as moot; and
3. Plaintiff's motion for appointment of counsel is DENIED as moot.
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