United States District Court, S.D. California
CHANITA M. FREEMAN, Plaintiff,
RENEE T. FRANCIS, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS; [DOC. NO. 2] SUA SPONTE DISMISSING
CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28
U.S.C. § 1915(E)(2); AND DENYING MOTION FOR APPOINTMENT
OF COUNSEL [DOC. NO. 3]
MICHAEL M. ANELLO United States District Judge.
Chanita M. Freeman, proceeding pro se, has filed the
instant action against Defendant Renee T. Francis.
See Doc. No. 1. Plaintiff also moves for leave to
proceed in this action in forma pauperis
(“IFP”), and moves for appointment of counsel.
See Doc. Nos. 2, 3.
for Leave to Proceed IFP
parties instituting any civil action, suit or proceeding in a
district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee of $400.
See 28 U.S.C. § 1914(a). An action may proceed
despite a plaintiff's failure to prepay the entire fee
only if she is granted leave to proceed IFP pursuant to 28
U.S.C. § 1915(a). See Rodriguez v. Cook, 169
F.3d 1176, 1177 (9th Cir. 1999). “To proceed in forma
pauperis is a privilege not a right.” Smart v.
Heinze, 347 F.2d 114, 116 (9th Cir. 1965). A party need
not be completely destitute to proceed in forma
pauperis. Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339-40 (1948). Plaintiff's IFP
application details her net monthly income and her monthly
expenses. Based thereon, the Court concludes that Plaintiff
should be allowed to proceed IFP pursuant to 28 U.S.C. §
1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177
(9th Cir. 1999). Plaintiff's submission demonstrates that
she lacks the financial resources to pay the costs of
commencing this action. Accordingly, the Court GRANTS
Plaintiff's motion to proceed IFP. See Doc. No.
Pursuant To 28 U.S.C. § 1915(E)(2)(B)
plaintiff proceeds IFP, the complaint is subject to mandatory
screening and the Court must order the sua sponte
dismissal of any case it finds “frivolous, malicious,
failing to state a claim upon which relief may be granted, or
seeking monetary relief from a defendant immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v.
Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited
to prisoners.”). “[W]hen determining whether a
complaint states a claim, a court must accept as true all
allegations of material fact and must construe those facts in
the light most favorable to the plaintiff.” Resnick
v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In
addition, the Court has a duty to liberally construe a
pro se plaintiff's pleadings. See id.
In giving liberal interpretation to a pro se
complaint, however, the court may not “supply essential
elements of claims that were not initially pled.”
See Ivey v. Board of Regents of the University of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
complaint should be dismissed for failure to state a claim
if, taking all well-pleaded factual allegations as true, it
does not contain “enough facts to state a claim to
relief that is plausible on its face.” See Coto
Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir.
2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Caviness v. Horizon
Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir.
2010) (citation omitted).
action arises out of a custody dispute. Plaintiff alleges
causes of action for perjury pursuant to California Penal
Code section 118(a), interference with child custody pursuant
to California Penal Code section 278.5, parental alienation,
and slander and libel. Plaintiff requests monetary damages,
that her son to be returned to her, and that Defendant be
prosecuted for perjury, interference with child custody, and
slander and libel. Essentially, Plaintiff alleges Defendant,
who is her son's stepmother, has interfered with and
thwarted Plaintiff's ability to see and parent her son,
caused Plaintiff to be arrested for kidnapping her son, and
has made perjurious and defamatory statements during court
proceedings and otherwise.
Court lacks jurisdiction over this action. “Federal
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). As such, “[a] federal court is
presumed to lack jurisdiction in a particular case unless the
contrary affirmatively appears.” Stock West, Inc.
v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.
1989) (citation omitted). Federal Rule of Civil Procedure
12(h)(3) permits a district court to dismiss a complaint
sua sponte for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(h)(3); see Scholastic Entm't, Inc. v.
Fox Entm't Grp., Inc., 336 F.3d 982, 985 (9th Cir.
2003). Without subject matter jurisdiction, a federal court
is without “power” to hear or adjudicate a claim.
See Leeson v. Transamerica Disability Income Plan,
671 F.3d 969, 975 (9th Cir. 2012) (citing Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 89
(1998)); Kokkonen, 511 U.S. at 377. Generally,
subject matter jurisdiction is based on the presence of a
federal question, see 28 U.S.C. § 1331, or on
complete diversity of citizenship between the parties,
see 28 U.S.C. § 1332. A federal question is one
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331.
“[F]ederal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Diversity
jurisdiction exists where a plaintiff has pled (1) the amount
in controversy exceeds $75, 000, and (2) no plaintiff is a
citizen of the same state as any defendant. See 28
U.S.C. § 1332.
does not assert any causes of action arising under federal
law to invoke federal question jurisdiction. Further,
“the ‘domestic relations exception' prevents
federal courts from exercising jurisdiction in child custody
matters.” See Pronesti v. Dep't of Family
Servs., No. 215CV01994JADPAL, 2017 WL 976629, at *2 (D.
Nev. Jan. 25, 2017), report and recommendation
adopted, No. 215CV01994JADPAL, 2017 WL 968991 (D. Nev.
Mar. 13, 2017) (citing Ankenbrandt v. Richards, 504
U.S. 689 (1992)); “The subject matter of domestic
relations and particularly child custody problems is
generally considered a state law matter.” Id.;
see also Peterson v. Babbitt, 708 F.2d 465, 466 (9th
Cir. 1983) (per curiam) (stating that since 1890,
“federal courts have uniformly held that they should
not adjudicate cases involving domestic relations”);
Santos v. Los Angeles Cty. Dep't of Children &
Family Servs., 200 F. App'x 681, 683 (9th Cir.
2006). Thus, the Court does not have jurisdiction over any of
Plaintiff's claims regarding custody or visitation
diversity jurisdiction, while Plaintiff and Defendant appear
to be residents of different states, Plaintiff provides no
basis for the Court to conclude that her damages would exceed
$75, 000. For example, in describing her damages, Plaintiff
alleges that “due to [Defendant's] egregious antics
of having me arrested, ” Plaintiff's family had to
take on the responsibility of taking care of Plaintiff's
other children while Plaintiff was incarcerated. See
Doc. No. 1. Plaintiff alleges her family also incurred
damages in hiring an attorney “to fight to get [her]
out of jail, ” and helping her with other financial
obligations such as her mortgage. See Doc. No. 1.
Thus, Plaintiff does not allege that she suffered these
damages-she alleges her family did. See Powers v.
Ohio, 499 U.S. 400, 410 (1991) (“In the ordinary
course, a litigant must assert his or her own legal rights
and interests, and cannot rest a claim to relief on the legal
rights or interests of third parties.”). Also,
Plaintiff does not allege she suffered any monetary damages
as a result of any allegedly defamatory statements. Thus, the
Court does not have jurisdiction over any other remaining
claims. Based on the foregoing, the Court lacks jurisdiction
over this entire action.
even were the Court to consider the sufficiency of
Plaintiff's allegations, the Court would be required to
dismiss this action. For example, regarding Plaintiff's
request that Defendant be prosecuted under various sections
of the California penal code, an individual may not bring
criminal charges against another individual by ...