United States District Court, E.D. California
MICHALLA C. ALFARO BRITTANY, Plaintiff,
DONNA S. ROANASIOS, Defendant.
ORDER GRANTING IFP AND DISMISSING WITH LEAVE TO AMEND
(ECF NOS. 1, 2)
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Michalla Brittany, 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 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 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); 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.
the substantiality doctrine, the district court lacks subject
matter jurisdiction when the question presented is too
insubstantial to consider.” Cook v. Peter Kiewit
Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985) (citing
Hagans v. Lavine, 415 U.S. 528, 536-39 (1974)).
“The claim must be ‘so insubstantial,
implausible, foreclosed by prior decisions of this Court or
otherwise completely devoid of merit as not to involve a
federal controversy within the jurisdiction of the District
Court, whatever may be the ultimate resolution of the federal
issues on the merits.'” Id. (quoting
Oneida Indian Nation v. County of Oneida, 414 U.S.
661, 666 (1974)); see also Apple v. Glenn, 183 F.3d
477, 479 (6th Cir. 1999) (“a district court may, at any
time, sua sponte dismiss a complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure when the allegations of a complaint
are totally implausible, attenuated, insubstantial,
frivolous, devoid of merit, or no longer open to
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.
Plaintiff submitted a form civil complaint, checking the box
for “federal question” jurisdiction. (ECF No. 1
at p. 3.) However, the information she provided in this
Complaint does not appear to implicate a particular federal
question. Plaintiff lists as a basis for federal question
jurisdiction “sponership [sic] civil rights act [and]
other product liability.” (Id. at p. 4.) For
her statement of claim, Plaintiff asserts: “Defendant
was a sponsership [sic] to some of my children and can no
longer sponer [sic] me or my children. Their's [sic] is
no arguement [sic]].” (Id. at p. 5.) Plaintiff
also states that Defendant allegedly told her she owes $375,
000 for being “behind, ” but that “I
thought I already paid with court money and state of
California.” (Id. at p. 4.) The Court is
unsure what civil rights act Plaintiff is referring to, and
any product liability claims would arise under state law.
Further, the Court is unsure of who Defendant is, the
circumstances or legal basis surrounding a sponsorship for
her or her children, or any other details about her
situation. The Complaint, as it exists now, is insubstantial
and potentially frivolous, and does not implicate federal
subject matter jurisdiction. Cook, 775 F.2d at 1035.
light of plaintiff's pro se status, and because it is at
least conceivable that Plaintiff can allege some claim, the
court finds it appropriate to grant plaintiff an opportunity
to amend the complaint. If plaintiff elects to file an
amended complaint, it shall be captioned “First Amended
Complaint, ” shall be typed or written in legible
handwriting, shall address the deficiencies outlined in this
order, and shall be filed within 21 days of this order.
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 original complaint no longer serves
any function in the case.
for a complaint to meet the Federal Rules of Civil Procedure,
it must contain a short and plain statement of the grounds
for the court's jurisdiction. Fed.R.Civ.P. 8. For federal
question jurisdiction, it must be clear from the face of the
complaint that a particular provision of the U.S.
Constitution or a particular federal law is implicated.
See 28 U.S.C. § 1331. A complaint must contain
more than “naked assertions, ” “labels and
conclusions, ” or “a formulaic recitation of the
elements of a cause of action.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007). It must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
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.”
nothing in this order requires plaintiff to file a first
amended complaint. If plaintiff determines that she is unable
to amend the Complaint in compliance with the Court's
order at this juncture, she may alternatively file a notice
of voluntary dismissal of her claims without prejudice