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Guillen v. Secretary of Health and Human Services

United States District Court, N.D. California

August 3, 2016

HEATHER GUILLEN, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

          ORDER TO PLAINTIFF TO SHOW CAUSE RE: DKT. NO. 1

          NATHANAEL M. COUSINS UNITED STATES MAGISTRATE JUDGE

         Plaintiff Heather Guillen, proceeding pro se, has filed a complaint against the Secretary of Health And Human Services after being denied Lidoderm patches (LP). Dkt. No. 1. She has also filed a motion for leave to proceed in forma pauperis. Dkt. No. 2.

         However, Guillen’s letter does not allege diversity of citizenship or a federal cause of action and does not satisfy the rules of pleading under Federal Rule of Civil Procedure 8(a). Therefore, Guillen is ordered to show cause why her complaint should not be dismissed. She is also reminded that she must either consent to or decline the jurisdiction of a magistrate judge under U.S.C. § 636(c). A form is attached to make this decision. Also attached is a letter providing guidance to additional resources the Court provides pro se litigants. Guillen must respond to this order and must either consent or decline magistrate judge jurisdiction by August 17, 2016.

         Under 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 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). “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.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

         Here, Guillen has shown in her IFP application that she is unable to pay the filing fee required to file a complaint in federal district court. Dkt. No. 2. However, upon review of her allegations, the Court finds that, liberally construed, her complaint does not pass § 1915 review and should be dismissed for lack of federal subject matter jurisdiction. Federal Rule of Civil Procedure 8 requires that a complaint must contain: (1) a short plain statement of the grounds for the court’s jurisdiction; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought. Guillen’s 63 page complaint does not give a description of the facts of her case or which laws or rights the defendant violated. Dkt. No. 1. She does not appear to be appealing a decision by the Commissioner of Social Security, and her complaint is a list of reasons that LP is an effective prescription to manage pain, including her doctor’s decision to prescribe LP’s “off-label.” Id. at 4. It fails to present federal subject matter jurisdiction. Therefore, the Court orders Guillen to show cause why her complaint should not be dismissed. She must respond to this order in writing and also must either consent to or decline magistrate judge jurisdiction by August 17, 2016. Also attached is a letter providing guidance to additional resources the Court provides pro se litigants.

         IT IS SO ORDERED.

         CONSENT OR DECLINATION TO MAGISTRATE JUDGE JURISDICTION

         INSTRUCTIONS: Please indicate below by checking one of the two boxes whether you (if you are the party) or the party you represent (if you are an attorney in the case) choose(s) to consent or decline magistrate judge jurisdiction in this matter. Sign this form below your selection.

         () Consent to Magistrate Judge Jurisdiction In accordance with the provisions of 28 U.S.C. § 636(c), I voluntarily consent to have a United States magistrate judge conduct all further proceedings in this case, including trial and entry of final judgment. I understand that appeal from the judgment shall be taken directly to the United States Court of Appeals for the Ninth Circuit.

         OR

         () Decline Magistrate Judge Jurisdiction

         In accordance with the provisions of 28 U.S.C. § 636(c), I decline to have a United States magistrate judge conduct all further proceedings in this case and I hereby request that this case be reassigned to a United States district judge.

         To: Pro Se Litigant

         Re: Representing ...


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