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Magdalina Kalincheva v. Jesse Neubarth

October 25, 2012



Plaintiff, Magdalina Kalincheva, is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On August 27, 2012 plaintiff filed a complaint and a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

Plaintiff has submitted an in forma pauperis application that make the showing required by 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis status does not complete the inquiry required by the statute. "'A district 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.'" Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See also Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) ("It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis."). Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.

Fed. R. Civ. P. 8(a).

Here, plaintiff's complaint is deficient in several respects. First, plaintiff's complaint does not contain a short and plain statement of the grounds upon which the court's jurisdiction depends. Instead, in her complaint plaintiff merely alleges in conclusory fashion that this "case belongs in federal court under federal questions jurisdiction because it is about federal laws . . ." (Compl. (Doc. No. 1) at 1.) Plaintiff's complaint thereafter lists roughly a dozen federal statutory provisions, none of which establish the court's jurisdiction over the claims which plaintiff is apparently seeking to pursue.

Jurisdiction is a threshold inquiry that must precede the adjudication of any case before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992).*fn1 "Federal courts are presumed to lack jurisdiction, 'unless the contrary appears affirmatively from the record.'" Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)).

Lack of subject matter jurisdiction may be raised by the court at any time during the proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). A federal court "ha[s] an independent obligation to address sua sponte whether [it] has subject-matter jurisdiction." Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the obligation of the district court "to be alert to jurisdictional requirements." Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.

The burden of establishing jurisdiction rests upon plaintiff as the party asserting jurisdiction. Kokkonen, 511 U.S. at 377; see also Hagans v. Lavine, 415 U.S. 528, 543 (1974) (acknowledging that a claim may be dismissed for lack of jurisdiction if it is "so insubstantial, implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court"); Bell v. Hood, 327 U.S. 678, 682-83 (1946) (recognizing that a claim is subject to dismissal for want of jurisdiction where it is "wholly insubstantial and frivolous" and so patently without merit as to justify dismissal for lack of jurisdiction ); Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (holding that even "[a] paid complaint that is 'obviously frivolous' does not confer federal subject matter jurisdiction . . . and may be dismissed sua sponte before service of process.").

In addition, plaintiff's complaint does not contain a short and plain statement of her claim showing that she is entitled to relief. In this regard, the complaint before the court consists largely of vague and conclusory allegations. For instance, plaintiff alleges that defendant Neubarth (plaintiff's ex-husband apparently) "knowingly stole everything" from plaintiff in their "illegal divorce," wanted to keep plaintiff "dependent on him and his hostage like Jaycee Dugard," and that plaintiff is "illegally boarded and . . . imprisoned in the laundry room which is unfit to live." (Compl. (Doc. No. 1) at 3, 16.)

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. Jones, 733 F.2d at 649.

Moreover, in several other respects plaintiff's complaint fails to state a cognizable claim. In this regard, central to plaintiff's complaint is her allegation that defendant Neubarth signed an immigration form guaranteeing that he would provide plaintiff with a certain level of financial support. In this regard, the complaint alleges the plaintiff, an immigrant from Bulgaria, and defendant Neubarth were married on August 9, 1991 in Bulgaria. (Compl. (Doc. No. 1) at 4.) Plaintiff alleges that in connection with their marriage, defendant Neubarth signed an "I-354 affidavit of support" which, according to plaintiff, is a "guarantee to [plaintiff] that [she] cannot be poor, cannot be homeless, and cannot be on government assistance of any kind . . ." (Id.) Plaintiff also refers to a conversation she allegedly had with an immigration attorney who informed plaintiff that the Seventh Circuit Court of Appeals had recently enforced a "contract" claim based on such an affidavit of support. (Id. at 19.)

Though the Seventh Circuit decision referred to in plaintiff's complaint is not identified, the court believes she is referring to the case of Wenfang Liu v. Mund, 686 F.3d 418 (7th. Cir. 2012). There, the Seventh Circuit found that the affidavit of support found on Immigration Form I-864 "is in the form of a contract between the sponsor and the United States," that requires the sponsor to support the sponsored alien at 125 percent of the poverty income level subject to few excusing conditions, of which divorce is not one. Id. at 420. Moreover, the court concluded that such a sponsored alien is authorized to bring suit "in any appropriate court" and the right of support conferred by federal law exists apart from rights addressed in state divorce proceedings. Id. at 419-20.

However, the Form I-864 at issue in Wenfang Liu was created pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and thus could not have been the form signed by defendant Neubarth in 1991 because that form did not exist at that time. Rather, it is clear that defendant Neubarth could only have signed the I-134 form. See Compl. (Doc. No. 1) at 4 (mistakenly referring to an I-354 form). That I-134 form did not carry with it the same contractual obligations imposed by the I-864 Form, and thus "'the contractual obligations imposed by the IIRIRA on an affidavit of support made on an I-864 Form do not attach to affidavits of support made on an old I-134 Form.'" Cobb v. Cobb, No. 1:12-cv-00875-LJO-SKO, 2012 WL 2620524, at *3 (E.D. Cal. July 5, 2012) (quoting Tornheim v. Kohn, No. 00 CV 5084 (SJ), 2002 WL 482534, at *4 (E.D. N.Y. Mar. 26, 2002)). See also ...

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