United States District Court, N.D. California
ORDER DISMISSING COMPLAINT FOLLOWING § 1915
REVIEW RE: DKT. NO. 1
NATHANAEL M. COUSINS United States Magistrate Judge.
Mahamoud Ascarie, proceeding pro se, alleges that he was
wrongfully terminated and tricked into working on a volunteer
basis as a part time chemistry lecturer by his former
employer, Gavilan College. Dkt. No. 1 at 2. However, Ascarie
fails to state a basis for federal subject matter
jurisdiction. Therefore, Ascarie's complaint is dismissed
with leave to amend. He must file an amended complaint by
August 8, 2016, or his complaint will be dismissed with
Review Under § 1915
28 U.S.C. § 1915(a), "any court of the United
States may authorize the commencement... of any suit. . .
without prepayment of fees or security therefor, by a person
who submits an affidavit that includes a statement. . . that
the person is unable to pay such fees or give security
therefor." A district court must dismiss the complaint
of an in forma pauperis (IFP) applicant if it determines that
the complaint is frivolous or fails to Case No. 16-cv-02493
NC state a claim upon which relief can be granted. 28 U.S.C.
§ 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000). A complaint is frivolous for
purposes of 28 U.S.C. § 1915 if it lacks an arguable
basis either in law or in fact. Neitzke v. Williams,
490 U.S. 319, 325 (1989). "Dismissals on these grounds
are often made sua sponte prior to the issuance of process,
so as to spare prospective defendants the inconvenience and
expense of answering such complaints." Id. at
litigant is acting pro se and the court finds the
litigant's complaint frivolous within the meaning of 28
U.S.C. § 1915(e)(2)(B), the pro se litigant "must
be given leave to amend his or her complaint, and some notice
of its deficiencies, unless it is absolutely clear that the
deficiencies of the complaint could not be cured by
amendment." Cato v. United States, 70 F.3d
1103, 1106 (9th Cir. 1995) (citation omitted).
Federal Subject Matter Jurisdiction
courts are courts of limited jurisdiction, " and can
only adjudicate cases which the Constitution or Congress
authorize to; cases involving a federal question or diversity
of citizenship. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994).
subject matter jurisdiction based on the presence of a
federal question is governed by 28 U.S.C. § 1331 and
requires a civil action to arise under the constitution,
laws, or treaties of the United States. "[I]t is
elementary that the subject matter jurisdiction of the
district court is not a waivable matter and may be raised at
any time by one of the parties, by motion or in the
responsive pleadings, or sua sponte by the trial or reviewing
court." Emrich v. Touch Ross & Co., 846
F.2d 1190, 1194 fn. 2 (9th Cir. 1988). Federal subject matter
jurisdiction based upon diversity is governed by 28 U.S.C.
§ 1332(a)(1) and requires complete diversity of
citizenship and an amount in controversy in excess of $75,
Ascarie has shown in his IFP application that he is unable to
pay the filing fee required to file a complaint in federal
district court. Dkt. Nos. 2, 5 (application and order
granting IFP status). However, upon review of his
allegations, the Court finds that, liberally construed, his
complaint does not pass § 1915 review and should be
dismissed for lack of federal subject matter jurisdiction.
states that "[v]enue is proper in this court, within the
meaning of subdivision (b) of California Code Section 12965,
because the unlawful employment practices complained herein
occurred within Santa Clara County, California."
Id. at 2. However, this is incorrect. Unlike state
court, which is a court of general jurisdiction, a federal
court may hear a case only if it has subject matter
jurisdiction, which requires either (1) federal question
jurisdiction or (2) diversity jurisdiction.
Kokkonen, 511 U.S. at 377.
Court to have federal question jurisdiction, Ascarie's
action must arise under federal law. 28 U.S.C. § 1331.
"A case arises under federal law within the meaning of
§ 1331 if a well-pleaded complaint establishes either
that federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on
resolution of a substantial question of federal law."
Proctor v. Vishay Intertechnology Inc., 584 F.3d
1208, 1219 (9th Cir. 2009) (internal quotations omitted).
Pursuant to the "well-pleaded complaint" rule,
"the federal question on which jurisdiction is premised
cannot be supplied via a defense; rather, the federal
question must be disclosed upon the face of the complaint,
unaided by the answer." Provincial Gov't of
Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1086
(9th Cir. 2009) (internal quotations omitted).
Ascarie's complaint appears to be grounded solely in
California state law. He alleges that Defendants have
violated the "California Fair Employment and Housing Act
(California Government Code Section 129000 et seq.), "
and "Section 12940 of the California Government Code,
" and also references the "Government Claims Act
(California Government Code Section 810 et seq.)." Dkt.
No. 1 at 2, 3, 5. He does not allege a violation of the
Constitution or of federal employment law. Because his