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Regina Cobb v. Gregory Cobb

July 3, 2012

REGINA COBB,
PLAINTIFF,
v.
GREGORY COBB, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT AND GRANTING THIRTY DAYS LEAVE TO AMEND (Doc. 2.)

I. INTRODUCTION

Regina Cobb ("Plaintiff") is proceeding pro se in this action filed under 8 U.S.C. § 1183a (2009), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208.*fn1 For the reasons set forth below, Plaintiff's complaint shall be DISMISSED without prejudice and with 30 days leave to amend.

II. FACTUAL BACKGROUND

On May 23, 2012, Plaintiff filed a complaint asserting that Gregory Cobb ("Defendant") is "breaking federal law" in violation of 8 U.S.C. § 1183a, by failing to provide Plaintiff with adequate financial support as required by Defendant's obligations under a "signed affidavit of support."*fn2

(Doc. 1, p. 1.) Plaintiff alleges that Defendant, her sponsor, signed an affidavit of support on behalf of Plaintiff before she immigrated to the United States in June 1999. (Doc. 1, p. 1.) Plaintiff states that she and Defendant married in August 1999, had a son in April 2000, and that Plaintiff became a permanent resident of the United States in 2003. (Doc. 1, p. 1.) Plaintiff contends that she and Defendant are now involved in ongoing divorce proceedings in state court, and that in May 2012 the state court judge reduced Defendant's alimony payments to zero. (Doc. 1, p. 2.) Plaintiff seeks an award of $10,920 in alimony for the period of November 2011 to May 2012. (Doc. 1, p. 2.) Plaintiff also seeks relief from the Court of "alimony at least at 125% of poverty level [sic] in California" from Defendant. (Doc. 1, p. 2.)

III. DISCUSSION

A. Plaintiff's Motion to Proceed In Forma Pauperis is GRANTED

Along with the complaint, Plaintiff also filed a motion to proceed without the prepayment of fees. (Doc. 2.) Plaintiff's motion to proceed in forma pauperis demonstrates entitled to proceed without prepayment of filing fees and is therefore GRANTED.

B. Screening Standard

In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case, and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

C. Analysis

1. No Subject-Matter Jurisdiction Over ...


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