United States District Court, E.D. California
TERESA Y. SMITH, Plaintiff,
HERB THOMAS & ASSOCIATES, Defendant.
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
Teresa Smith, is proceeding in this action pro se. This
matter was referred to the undersigned in accordance with
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending
before the court are plaintiff's complaint and motion to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
(ECF Nos. 1 & 2.) The complaint asserts that defendant
manages “a trust account” and has unfairly
treated plaintiff. (Compl. (ECF No. 1) at 5.)
court is required to screen complaints brought by parties
proceeding in forma pauperis. See 28 U.S.C. §
1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122,
1129 (9th Cir. 2000) (en banc). Here, plaintiff's
complaint is deficient. Accordingly, for the reasons stated
below, the undersigned will recommend that plaintiff's
application to proceed in forma pauperis be denied and that
plaintiff's complaint be dismissed without leave to
Plaintiff's Application to Proceed In Forma
in forma pauperis application makes the showing required by
28 U.S.C. § 1915(a)(1). However, a determination that a
plaintiff qualifies financially for in forma pauperis status
does not complete the inquiry required by the statute.
“‘A district court may deny leave to proceed in
forma pauperis at the outset if it appears from the face of
the proposed complaint that the action is frivolous or
without merit.'” Minetti v. Port of
Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting
Tripati v. First Nat. Bank & Trust, 821 F.2d
1368, 1370 (9th Cir. 1987)); see also McGee v. Department
of Child Support Services, 584 Fed.Appx. 638 (9th Cir.
2014) (“the district court did not abuse its discretion
by denying McGee's request to proceed IFP because it
appears from the face of the amended complaint that
McGee's action is frivolous or without merit”);
Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)
(“It is the duty of the District Court to examine any
application for leave to proceed in forma pauperis to
determine whether the proposed proceeding has merit and if it
appears that the proceeding is without merit, the court is
bound to deny a motion seeking leave to proceed in forma
the court must dismiss an in forma pauperis case at any time
if the allegation of poverty is found to be untrue or if it
is determined that 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.
See 28 U.S.C. § 1915(e)(2). A complaint is
legally frivolous when it lacks an arguable basis in law or
in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
(9th Cir. 1984). Under this standard, a court must dismiss a
complaint as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327; 28
U.S.C. § 1915(e).
state a claim on which relief may be granted, the plaintiff
must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). In considering
whether a complaint states a cognizable claim, the court
accepts as true the material allegations in the complaint and
construes the allegations in the light most favorable to the
plaintiff. Hishon v. King & Spalding, 467 U.S.
69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex
Hosp., 425 U.S. 738, 740 (1976); Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981).
minimum requirements for a civil complaint in federal court
are as follows:
A pleading which sets forth a claim for relief . . . shall
contain (1) a short and plain statement of the grounds upon
which the court's jurisdiction depends . . ., (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for judgment for the
relief the pleader seeks.
Fed. R. Civ. P. 8(a).
complaint fails to set forth a short and plain statement of
the grounds upon which the court's jurisdiction depends
or a statement of a claim showing that plaintiff is entitled
to relief. In this regard, the complaint alleges that
plaintiff's son was awarded a settlement in “case
number 2:15-cv-2511 MCE AC, ” and that the settlement
was put into a trust account managed by the defendant.
(Compl. (ECF No. 1) at 5.) Plaintiff asserts that was
“a big mistake” as plaintiff and her son are
“treated unfair, ” and have not been able to
“enjoy” the settlement since defendant was
appointed to manage the trust. (Id.) The complaint
also alleges that there is a “conflict of
interest” between plaintiff and the defendant, as
plaintiff does not “get along with”
defendant's staff, and that plaintiff's son has
“no communication with Herb Thomas at all.”
(Id. at 6.)
accepting these allegations as true, they neither provide a
basis for this court's jurisdiction over this newly filed
action nor state a claim upon which relief can be
granted.Although the Federal Rules of Civil
Procedure adopt a flexible pleading policy, a complaint must
give the defendant fair notice of the plaintiff's claims
and must allege facts that state the elements of each claim
plainly and succinctly. Fed.R.Civ.P. 8(a)(2); Jones v.
Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.
1984). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked assertions'
devoid of ‘further factual enhancements.'”
Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting
Twombly, 550 U.S. at 555, 557). A plaintiff must
allege with at least some degree of particularity overt acts
which the defendants engaged in that support the
plaintiff's claims. Jones, 733 F.2d at 649.
jurisdiction is a threshold inquiry that must precede the
adjudication of any case before the district court.
Morongo Band of Mission Indians v. Cal. State Bd. of
Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988).
Federal courts are courts of limited jurisdiction and may
adjudicate only those cases authorized by federal law.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994); Willy v. Coastal Corp., 503 U.S. 131,
136-37 (1992). “Federal courts are presumed to lack
jurisdiction, ‘unless the contrary appears
affirmatively from ...