United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STALES MAGISLRALE JUDGE.
Fehmida Begum, who proceeds without counsel in this action,
has requested leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. (ECF No. 2.) Plaintiff's
application in support of her request to proceed in forma
pauperis makes the showing required by 28 U.S.C. §
1915. Accordingly, the court grants plaintiff's request
to proceed in forma pauperis.
determination that a plaintiff may proceed in forma
pauperis does not complete the required inquiry.
Pursuant to 28 U.S.C. § 1915, the court is directed to
dismiss the case at any time if it determines that 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
is legally frivolous when it lacks an arguable basis either
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). The court may, therefore, dismiss a
claim 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.
avoid dismissal for failure to state a claim, a complaint
must contain more than “naked assertions, ”
“labels and conclusions, ” or “a formulaic
recitation of the elements of a cause of action.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57
(2007). In other words, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Furthermore, a claim upon which the
court can grant relief has facial plausibility.
Twombly, 550 U.S. at 570. “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.”
Iqbal, 556 U.S. at 678. When considering whether a
complaint states a claim upon which relief can be granted,
the court must accept the well-pled factual allegations as
true, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and construe the complaint in the light most favorable to the
plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236
a federal court has an independent duty to assess whether
federal subject matter jurisdiction exists, whether or not
the parties raise the issue. See United Investors Life
Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967
(9th Cir. 2004) (stating that “the district court had a
duty to establish subject matter jurisdiction over the
removed action sua sponte, whether the parties
raised the issue or not”); accord Rains v.
Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996).
The court must sua sponte dismiss the case if, at
any time, it determines that it lacks subject matter
jurisdiction. Fed.R.Civ.P. 12(h)(3). A federal district court
generally has original jurisdiction over a civil action when:
(1) a federal question is presented in an action
“arising under the Constitution, laws, or treaties of
the United States” or (2) there is complete diversity
of citizenship and the amount in controversy exceeds $75,
000. See 28 U.S.C. §§ 1331, 1332(a).
pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v.
Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir.
1988). Unless it is clear that no amendment can cure the
defects of a complaint, a pro se plaintiff proceeding in
forma pauperis is ordinarily entitled to notice and an
opportunity to amend before dismissal. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987);
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
case, plaintiff's complaint is vague and lacks any
request for relief. Plaintiff is apparently dissatisfied with
the fees she paid to the United States Citizenship and
Immigration Services (“USCIS”), associated with a
petition she filed for her daughter, who lives in Pakistan.
(ECF No. 1 at 5.) Plaintiff asserts that she has “been
victim of a lot of charges of mailing, immigration fees, DNA
fees, physical and mental harassment by USCIS Department
[sic].” (Id. at 6.) At the same time,
plaintiff has failed to explain exactly what occurred and she
has failed to state what relief she seeks.
plaintiff checked a box indicating that 28 U.S.C. §
1332, diversity of citizenship, is the basis for federal
subject matter jurisdiction in this case. (ECF No. 1 at 3.)
However, defendant USCIS is a federal agency and is not a
citizen of any state. Therefore, plaintiff cannot bring a
claim under diversity of citizenship against USCIS.
Additionally, plaintiff has indicated that she is not
bringing a claim under any federal statute, treaty, or
provision of the United States Constitution. (ECF No. 1 at
4.) Therefore, plaintiff has failed to establish a clear
basis for federal subject matter jurisdiction. See
28 U.S.C. §§ 1331, 1332(a).
light of the above, the court dismisses plaintiff's
complaint, but with leave to amend. If plaintiff elects to
file an amended complaint, it shall be captioned “First
Amended Complaint”; shall address the deficiencies
outlined above; and shall be filed within 28 days of this
order. Specifically, in any amended pleading, plaintiff must
state a basis for federal subject matter jurisdiction, such
as a federal statute, a federal treaty, or a provision of the
United States Constitution. Plaintiff must also clearly state
what relief she seeks.
is informed that the court cannot refer to a prior complaint
or other filing in order to make plaintiff's first
amended complaint complete. Local Rule 220 requires that an
amended complaint be complete in itself without reference to
any prior pleading. As a general rule, an amended complaint
supersedes the original complaint, and once the first amended
complaint is filed, the initial complaint no longer serves
any function in the case.
nothing in this order requires plaintiff to file a first
amended complaint. If plaintiff determines that she is unable
to amend her complaint to state a viable claim in accordance
with her obligations under Federal Rule of Civil Procedure
11, she may alternatively file a notice of voluntary
dismissal of her claims without prejudice pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this
IT IS HEREBY ORDERED that:
1. Plaintiffs motion to proceed in forma pauperis
(ECF No. ...