United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
seeks leave to proceed in forma pauperis pursuant to
28 U.S.C. 1915. Her declaration makes the showing required
by 28 U.S.C. §1915(a)(1) and (2). See ECF No.
2. Accordingly, the request to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
that plaintiff may proceed in forma pauperis does
not complete the required inquiry. Pursuant to §
1915(e)(2), the court must dismiss the case at any time if it
determines the allegation of poverty is untrue, or if 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. As discussed below, plaintiff’s
complaint fails to state a claim and must be dismissed.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, must 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,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and
a formulaic recitation of a cause of action’s elements
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level on the assumption
that all of the complaint’s allegations are
true.” Id. (citations omitted). Dismissal is
appropriate based either on the lack of cognizable legal
theories or the lack of pleading sufficient facts to support
cognizable legal theories. Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
738, 740 (1976), construe the pleading in the light most
favorable to the plaintiff, and resolve all doubts in the
plaintiff’s favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969). A pro se plaintiff must satisfy the
pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a)(2) requires a complaint to include
“a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at 555
(citing Conley v. Gibson, 355 U.S. 41 (1957)).
a federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution
and by Congress. Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994). The basic federal jurisdiction
statutes, 28 U.S.C. §§ 1331 & 1332, confer
“federal question” and “diversity”
jurisdiction, respectively. Federal question jurisdiction
requires that the complaint (1) arise under a federal law or
the U. S. Constitution, (2) allege a “case or
controversy” within the meaning of Article III, §
2 of the U. S. Constitution, or (3) be authorized by a
federal statute that both regulates a specific subject matter
and confers federal jurisdiction. Baker v. Carr, 369
U.S. 186, 198 (1962). To invoke the court’s diversity
jurisdiction, a plaintiff must specifically allege the
diverse citizenship of all parties, and that the matter in
controversy exceeds $75,000. 28 U.S.C. § 1332(a);
Bautista v. Pan American World Airlines, Inc., 828
F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside
the jurisdiction of the federal courts unless demonstrated
otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
subject matter jurisdiction may be raised at any time by
either party or by the court. Attorneys Trust v.
Videotape Computer Products, Inc., 93 F.3d 593, 594-95
(9th Cir. 1996).
Plaintiff May Not Initiate an Action on Behalf of
threshold matter, plaintiff Diana Lee Wallach Lorretz is the
sole signatory to the complaint. But she purports to bring
this action on behalf of herself and Turuche Lorretz and Joel
Dennis Wallach. There is no indication from the record that
Diana Lorretz is an attorney. Unless she is an attorney she
may not represent Turuche Lorretz and Joel Dennis Wallach,
and may not sign pleadings on their behalf. Rule 11 of the
Federal Rules of Civil Procedure requires that “[e]very
pleading, written motion, and other paper . . . be signed by
at least one attorney of record in the attorney’s
name-or by a party personally if the party is
unrepresented.” Fed. R. Civ. P. 11(a). In addition,
Local Rule 183(a) requires that any individual who is
representing herself without an attorney must appear
personally or by courtesy appearance by an attorney and may
not delegate that duty to any other individual. E.D. Cal.
L.R. 183(a). Accordingly, Ms. Lorretz may not bring claims on
behalf of Turuche Lorretz and Joel Dennis Wallach. See
Johns v. County of San Diego, 114 F.3d 874, 876-877 (9th
Cir. 1997) (a non-lawyer has no authority to appear as an
attorney for another, and general power of attorney does not
give non-lawyer right to assert the personal constitutional
claims of another).
Plaintiff’s Complaint Fails to Allege a Cognizable
significantly, review of the first amended complaint reveals
that it must be dismissed for failure to state a claim.
See ECF No. 14. The amended complaint, which purports
to allege claims against more than 25 defendants, consists
largely of unintelligible and conclusory allegations that
fail to suggest, much less support, a cognizable legal claim.
Plaintiff claims that she is a “beekeeper rancher
housewife,” and that defendants have prevented her from
finding Turuche Lorretz and Joel Wallach, who appear to be
plaintiff’s relatives. ECF No. 14 at 6. She claims that
the FBI and the Attorney General “covered up the not
forgivable defendant anti-U.S. constitution activity [for] a
long time, therefore some of we [sic] thirty one plaintiff
have been assassinated instead of protected and
rescued.” Id. She further alleges that the
defendants must be decapitated “to make sure they are
dead.” Id. at 7. Lastly, she claims defendants
depleted funds from a direct express card and have not
replaced the funds even though defendants could do so
“in less than one hour. Therefore plaintiff could not
escape from Sacramento crime scene.” Id.
amended complaint does not, however, identify any specific
causes of action. Nor does it include any coherent factual
allegations which could plausibly support a cognizable claim
for relief. Accordingly, the amended complaint must be
dismissed for failure to state a claim pursuant to 28 U.S.C.
1915(e)(2). Further, it is clear that another amendment
cannot cure the deficiencies. Therefore, it is recommended that
the dismissal be without further leave to amend. See Noll
v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While
the court ordinarily would permit a pro se plaintiff to
amend, leave to amend should not be granted where it appears
amendment would be futile).
it is hereby ORDERED that plaintiff’s request for leave
to proceed in forma pauperis (ECF No. 2) is granted.
it is RECOMMENDED that:
Plaintiff’s first amended complaint be dismissed