United States District Court, N.D. California
ADAM L. MILLER, Plaintiff,
DENVER HEALTH HOSPITAL, et al., Defendants.
ORDER REQUESTING REASSIGNMENT TO DISTRICT JUDGE;
REPORT AND RECOMMENDATION TO DENY IFP APPLICATION AND DISMISS
COMPLAINT RE: DKT. NOS. 2, 4, 7
M. RYU UNITED STATES MAGISTRATE JUDGE.
Adam Miller filed a complaint and Application to Proceed
In Forma Pauperis ("IFP application").
[Docket Nos. 1, 2.] Plaintiff has declined the jurisdiction
of a magistrate judge pursuant to 28 U.S.C. § 636.
[Docket No. 16.] The undersigned requests that this matter be
reopened and reassigned to a District Judge, and issues this
Report and Recommendation with the recommendation that the
IFP application be denied and the complaint be dismissed
without prejudice. Alternatively, the undersigned recommends
that if the IFP application is approved, the complaint should
be dismissed with leave to amend.
may authorize a plaintiff to prosecute an action in federal
court without prepayment of fees or security if the plaintiff
submits an affidavit showing that he or she is unable to pay
such fees or provide such security. See 28 U.S.C.
§ 1915(a). The court reviewed Plaintiff's IFP
application and found that it was incomplete. The court
issued and served an order on October 30, 2015 identifying
the deficiencies in Plaintiff's IFP application and
requiring Plaintiff to submit a completed IFP application or
pay the filing fee no later than November 13, 2015. [Docket
No. 4.] Specifically, Plaintiff listed various sources of
income. However, he did not list the amounts paid for his
monthly expenses, nor did he provide complete information
regarding his debts or financial obligations. [Docket No. 2.]
For this reason, the court could not determine whether he
should be granted IFP status.
November 9, 2015, the court's order was returned as
undeliverable. Plaintiff contacted the court and indicated
that there was a problem with the spelling of his name, which
the court then corrected. [Docket No. 7 at 1.] In light of
these circumstances, on November 12, 2015, the court
essentially re-issued the order identifying the deficiencies
in Plaintiff's IFP application. The court required
Plaintiff to file a completed IFP application or pay the
filing fee by no later than November 30, 2015. [Docket No.
7.] The order stated that failure to comply could result in
denial of Plaintiff's IFP application. Id.
Despite the court's order requiring Plaintiff to submit a
completed IFP application or pay the filing fee for this case
by November 30, 2015, Plaintiff did not do so. Indeed, to
date, he has not provided any further financial information.
undersigned issued an order on December 8, 2015, dismissing
the case without prejudice for failure to submit a completed
IFP application or pay the filing fee as ordered. [Docket No.
12.] The undersigned only recently discovered that it had
erred in issuing an order dismissing the case, for Miller had
not yet indicated whether he consented to magistrate judge
jurisdiction pursuant to 28 U.S.C. § 636(c).
December 28, 2015, Miller filed a document entitled
"motion to reopen case" stating that his "IFP
application filed with his Default Judgment and his Complaint
were complete and void of deficiency, " and that he
"attests and swears that there were no administrative
deficiencies to his application to proceed without filing
fees In Forma Pauperis." [Docket No. 13 at 2,
3.] He did not provide further financial information. On
December 28, 2015, Miller also filed a declination to
magistrate judge jurisdiction. [Docket No. 16.] In the
ensuing months, Miller has filed documents entitled
"letter, " "motion for reconsideration, "
"memorandum regarding December 8, 2015 dismissal, "
"motion for default judgment, " and "motion
for summary judgment." [Docket Nos. 17-22.]
undersigned now requests that the matter be reopened, and
that the case be reassigned to a district judge.
still has not provided a completed IFP application, nor has
he paid the filing fee. Therefore, the undersigned recommends
that the case be dismissed without prejudice on that basis.
REVIEW OF COMPLAINT
alternative, should the district court decide to grant the
IFP application, the undersigned recommends that the
complaint be dismissed with leave to amend. In reviewing an
application to proceed in forma pauperis, courts may
dismiss a case sua sponte if the party applying for in
forma pauperis status files a frivolous action, fails to
state a claim on 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)(B). To make the
determination under 28 U.S.C. § 1915(e)(2)(B), courts
assess whether there is an arguable factual and legal basis
for the asserted wrong, "however inartfully
pleaded." Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). Courts have the authority to dismiss
complaints founded on "wholly fanciful" factual
allegations for lack of subject matter jurisdiction.
Id. at 1228. A court can also dismiss a complaint
where it is based solely on conclusory statements, naked
assertions without any factual basis, or allegations that are
not plausible on their face. Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009); see also Erickson v.
Pardus, 551 U.S. 89 (2007) (per curiam).
pro se pleadings are liberally construed and held to a less
stringent standard than those drafted by lawyers, a
complaint, or portion thereof, should be dismissed for
failure to state a claim if it fails to set forth
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 554 (2007); see also
Fed. R. Civ. P. 12(b)(6). "[A] district court should not
dismiss a pro se complaint without leave to amend unless it
is absolutely clear that the deficiencies of the complaint
could not be cured by amendment." Akhtar v.
Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quotations
court now reviews Plaintiff's complaint.
Federal Subject Matter Jurisdiction
courts are courts of limited jurisdiction." Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). Federal jurisdiction generally arises in one of two
ways: (1) from the presence of a federal question, or (2)
from complete diversity of the parties, where the amount in
controversy exceeds $75, 000. See 28 U.S.C.
§§ 1331, 1332. Federal Rule of Civil Procedure
8(a)(1) requires a federal plaintiff to include in the
complaint "a short and plain statement of the grounds
for the court's jurisdiction, " because "[a]
party invoking the federal court's jurisdiction has the
burden of proving the actual existence of subject matter
jurisdiction." Thompson v. McCombe, 99 F.3d
352, 353 (9th Cir. 1996) (citation omitted); see also
Kokkonen, 511 U.S. at 377 ("It is to be presumed
that a cause lies outside this limited jurisdiction and the
burden of establishing the contrary rests upon the party
asserting jurisdiction.") (citations omitted).
subject matter jurisdiction must "exist as of the time
the action is commenced." Morongo Band of Mission
Indians v. Cal. State Bd. of Equalization, 858 F.2d
1376, 1380 (9th Cir. 1988). Jurisdiction cannot be expanded
by judicial decree, nor can it be conferred on the district
court by agreement or consent. Kokkonen, 511 U.S. at
377; Morongo, 858 F.2d at 1380. "If
jurisdiction is lacking at the outset, the district court has
no power to do ...