United States District Court, E.D. California
TOBY J. TODD, Plaintiff,
PUBLISHING CLEARING HOUSE, Defendant.
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
Toby Todd, 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 second amended complaint and motion
to proceed in forma pauperis pursuant to 28 U.S.C. §
1915. (ECF Nos. 2 & 5.) Therein, plaintiff complains
about someone “hacking files” to deny plaintiff
$3 million in winnings. (Sec. Am. Compl. (ECF No. 5) at 3.)
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 second
amended complaint is deficient. Accordingly, for the reasons
stated below, the undersigned will recommend that
plaintiff's second amended complaint be dismissed without
leave to amend.
Plaintiff's Application to Proceed In Forma
in forma pauperis application makes the financial 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).
Second Amended Complaint
true of plaintiff's original complaint, the second
amended complaint fails to contain a short and plain
statement of the grounds upon which the court's
jurisdiction depends or a short and plain statement of a
claim showing that plaintiff is entitled to relief. In this
regard, 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 the record.'” Casey v.
Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting
Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 546 (1986)).
subject matter jurisdiction may be raised by the court at any
time during the proceedings. Attorneys Trust v. Videotape
Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir.
1996). A federal court “ha[s] an independent obligation
to address sua sponte whether [it] has subject-matter
jurisdiction.” Dittman v. California, 191 F.3d
1020, 1025 (9th Cir. 1999). It is the obligation of the
district court “to be alert to jurisdictional
requirements.” Grupo Dataflux v. Atlas Global
Group, L.P., 541 U.S. 567, 593 (2004). Without
jurisdiction, the district court cannot decide the merits of
a case or order any relief. See Morongo, 858 F.2d at
basic federal jurisdiction statutes are 28 U.S.C.
§§ 1331 and 1332, which confer “federal
question” and “diversity” jurisdiction,
respectively. Federal jurisdiction may also be conferred by
federal statutes regulating specific subject matter.
“[T]he existence of federal jurisdiction depends solely
on the plaintiff's claims for relief and not on
anticipated defenses to those ...