United States District Court, E.D. California
LEO B. TURNER, Plaintiff,
UNITED STATES POSTAL SERVICE, and MOMENTUM CREDIT CARD CO., Defendants.
ORDER GRANTING IFP AND DISMISSING FOR LACK OF SUBJECT
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Leo B. Turner, who is proceeding 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 his 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 immune defendant.
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),
superseded on other grounds by statute as stated in Lopez
v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc);
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
1984). Nevertheless, leave to amend need not be granted when
further amendment would be futile. See Cahill v. Liberty
Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).
claim, as stated on the “statement of claim”
line, is as follows:
On 10/11/2018 I purchased a Google play card for $500. Google
said it was a scam involving the postal services in West
Sacramento. I reported it to the Federal Commission informing
of the cruel and unusual punishment [of] a disable[d] person.
Both party refuse [sic] to give a refund for the $500 so the
post office and Momentum is in cahoots with each [other].
[They] knew it was a scam when they sold me that Google play
(ECF No. 1.) Plaintiff checked the box for federal question
jurisdiction; he stated the basis for jurisdiction as
“[a] Google play card was sold at federal business for
$500 and the party's involve [sic] knew it was a scam,
and also Momentum Credit Card was in cahoots.”
(Id.) Liberally construed, Plaintiff's Complaint
appears to allege a claim of fraud against the United States
Postal Service and a company denominated “Momentum
Credit Card Company.” (Id.)
claim of wrongful conduct against the USPS falls within the
provisions of the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671 et seq. The
FTCA provides that “[t]he United States shall be liable
. . . in the same manner and to the same extent as a private
individual under like circumstances[.]” 28 U.S.C.
§ 2674. The FTCA also provides that district courts:
shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages . . . for injury
or loss of property . . . caused by the negligent or wrongful
act or omission of any employee of the Government while
acting within the scope of his office or employment.
28 U.S.C. § 1346(b). However, the FTCA specifically
excludes certain intentional torts, including “[a]ny
claim arising out of . . . misrepresentation, deceit, or
interference with contract rights.” 28 U.S.C. §
2680(h). Claims falling within this exclusion leave the
district court without power to hear the claim, as alleged
against the United States. Snow-Erlin v. United
States, 470 F.3d 804, 808 (9th Cir. 2006); Pauly v.
USDA, 348 F.3d 1143, 1151-52 (9th Cir. 2003) (noting
that the United States has not waived its sovereign immunity
with respect to misrepresentation and fraud claims); see
also West v. City of Mesa, 708 Fed.Appx. 288, 291 (9th
Cir. 2017) (United States entitled to sovereign immunity on
the plaintiff's fraud claim); White v. Soc. Sec.
Admin., 111 F.Supp.3d 1041, 1046 (N.D. Cal. 2015)
(dismissing fraud claim against the government per the FTCA
where plaintiff claimed an employee of the social security
administration committed identity theft). Thus,
Plaintiff's claim that the United States Postal Service
“knew it was a scam when they sold me that Google play
card” must be dismissed.
also states that an entity denominated “Momentum Credit
Card Company” was “in cahoots” with USPS.
Plaintiff's claim of fraud against this private entity is
a California state law claim, and provides no basis in and of
itself for federal question jurisdiction. See Hall v. N.
Am. Van Lines, Inc, 476 F.3d 683, 687 (9th Cir. 2007)
(finding the plaintiff's claims of fraud, breach of
contract, and conversion were not federal claims, as each
“relies exclusively on state law.”). Federal
jurisdiction may lie if the parties are completely diverse,
but the complaint makes no allegations of jurisdiction under
28 U.S.C. § 1332. Further, since the Court will be
dismissing the federal defendant, it would decline
supplemental jurisdiction under 28 U.S.C. § 1367 against
Momentum--in the absence of § 1332 jurisdiction.
Prather v. AT&T, Inc., 847 F.3d 1097, 1108 (9th
Cir. 2017) (“Without subject matter jurisdiction over
[the plaintiffs] federal claim, the district court properly
concluded it had no discretion to exercise supplemental
jurisdiction over [the] state law claims.”).
Court cannot say that amendment would be futile, given the
reasoning above; thus, Plaintiff is granted the opportunity
to amend his complaint. See Noll, 809 F.2d at 1448.
Plaintiff is reminded that this “First Amended
Complaint” must stand on its own, make proper
allegations of jurisdiction against each defendant, and plead
any claims of fraud with particularity (as required by
Federal Rule of Civil Procedure 9(b)). If Plaintiff
determines he is unable to amend his complaint to state a
viable claim in accordance with his obligations under Federal
Rule of Civil ...