United States District Court, N.D. California
Dkt. Nos. 1, 2
ORDER GRANTING APPLICATION TO PROCEED IN FORMA
PAUPERIS; REPORT AND RECOMMENDATION TO DISMISS CASE WITH
PREJUDICE; ORDER REASSIGNING CASE TO A DISTRICT
A Westmore, United States Magistrate Judge
29, 2019, Plaintiff Elizabeth Curry White filed this civil
action and application to proceed in forma pauperis.
Having considered the application, the Court GRANTS
Plaintiff’s application to proceed in forma
pauperis. The Court now screens Plaintiff’s
complaint pursuant to 28 U.S.C. § 1915, and, for the
reasons set forth below, REASSIGNS the case to a district
judge with the recommendation that the case be DISMISSED with
in forma pauperis statute provides that the Court
shall dismiss the case if at any time the Court determines
that the allegation of poverty is untrue, or that the action
(1) is frivolous or malicious, (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C.
complaint is frivolous under Section 1915 where there is no
subject matter jurisdiction. See Castillo v.
Marshall, 207 F.3d 15, 15 (9th Cir. 1997) (citation
omitted); see also Pratt v. Sumner, 807 F.2d 817,
819 (9th Cir. 19987) (recognizing the general proposition
that a complaint should be dismissed as frivolous on Section
1915 review where subject matter jurisdiction is lacking).
complaint may also be dismissed for failure to state a claim,
because Section 1915(e)(2) parallels the language of Federal
Rule of Civil Procedure 12(b)(6). Lopez v. Smith,
203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint,
therefore, must allege facts that plausibly establish the
defendant’s liability. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007). When the complaint
has been filed by a pro se plaintiff, courts must
“construe the pleadings liberally . . . to afford the
petitioner the benefit of any doubt.” Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010)(citations
omitted). Upon dismissal, pro se plaintiffs proceeding in
forma pauperis must be given leave to “amend their
complaint unless it is absolutely clear that the deficiencies
of the complaint could not be cured by amendment.”
Franklin v. Murphy, 745 F.2d 1221, 1235 n.9 (9th
Cir. 1984) (internal citations and quotation marks omitted);
Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
the second case Plaintiff has filed regarding the Department
of Veterans Affairs’ allegedly improper offsetting of
Plaintiff’s retirement payments in order to collect on
a debt. (See White v. Wright, No. 17-cv-3956-KAW,
Dkt. No. 1 (“2017 Compl.”); White v.
Department of Veterans Affairs, No. 19-cv-4333-KAW, Dkt.
No. 1 (“2019 Compl.”).) In both cases, Plaintiff
alleges that she was a fiduciary payee for the VA benefits of
her brother, Clifford E. Curry, a disabled veteran. (2017
Compl. at 22; 2019 Compl. at 3.) The VA found that Plaintiff
used $25, 000 of Mr. Curry’s benefits to purchase a
condominium, and began taking a monthly offset of 25% from
Plaintiff’s federal retirement benefits. (2017 Compl.
at 9, 14-15, 23; 2019 Compl. at 3-4.) Plaintiff, however,
asserts that Mr. Curry falsified information to the VA, and
that she is not responsible for the debt. (2017 Compl. at 23;
2019 Compl. at 4.)
February 2, 2018, the Court dismissed Plaintiff’s
original case due to lack of jurisdiction. (See
Attachment A (“Order on Mot. to Dismiss”) at 9.)
As further explained in the order, the Court found that
Plaintiff’s claim fell within the purview of the
Veterans’ Judicial Review Act of 1988. (Id. at
5-9.) Thus, the Court lacked jurisdiction over the
case. As the instant case concerns the same
claims, which in turn directly affect benefits under the
VJRA, the Court finds that it lacks jurisdiction here too.
reasons set forth above and in the February 2, 2018 dismissal
order, the Court REASSIGNS this action to a district judge
with the recommendation that the action be DISMISSED for lack
party may file objections to this report and recommendation
with the district judge within 14 days of being served with a
copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); N.D. Civil L.R. 72-3. The parties are advised that
failure to file objections within the specified time may
waive the right to appeal the district court’s order.
IBEW Local 595 Trust Funds v. ACS Controls Corp.,
No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20,
Court also refers Plaintiff to the Federal Pro Bono
Project’s Help Desk for assistance-a free service for
pro se litigants-which can be reached by calling (415)
782-8982 to make an appointment. While the Help Desk does not
provide legal representation, a licensed attorney may ...