Miller v. Denver Health Hospital

          ORDER REQUESTING REASSIGNMENT TO DISTRICT JUDGE; REPORT AND RECOMMENDATION TO DENY IFP APPLICATION AND DISMISS COMPLAINT RE: DKT. NOS. 2, 4, 7

          DONNA M. RYU UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I.IFP APPLICATION

         A court 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.

         On 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.

         The 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).

         On 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.]

         The undersigned now requests that the matter be reopened, and that the case be reassigned to a district judge.

         Plaintiff 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.

         II. REVIEW OF COMPLAINT

         In the 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).

         Although 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 omitted).

         The court now reviews Plaintiff's complaint.^[1]

         A. Federal Subject Matter Jurisdiction

         "Federal 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).

         Federal 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 ...