United States District Court, E.D. California
MICHALLA C. ALFARO BUTTANY, Plaintiff,
DONNIE BARRACKAS, Defendant.
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is proceeding in this action pro se. This matter was
accordingly referred to the undersigned by E.D. Cal.
302(c)(21). Plaintiff has filed a request for leave to
proceed in forma pauperis (“IFP”) pursuant to 28
U.S.C. § 1915, and has submitted the affidavit required
by that statute. See 28 U.S.C. § 1915(a)(1).
ECF No. 2. The motion to proceed IFP will therefore be
federal IFP statute requires federal courts to dismiss a case
if the action is legally “frivolous or malicious,
” fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Plaintiff must assist the court in determining whether or not
the complaint is frivolous, by drafting the complaint so that
it complies with the Federal Rules of Civil Procedure
(“Fed. R. Civ. P.”). The Federal Rules of Civil
Procedure are available online at
Under the Federal Rules of Civil Procedure, the complaint
must contain (1) a “short and plain statement” of
the basis for federal jurisdiction (that is, the reason the
case is filed in this court, rather than in a state court),
(2) a short and plain statement showing that plaintiff is
entitled to relief (that is, who harmed the plaintiff, and in
what way), and (3) a demand for the relief sought.
Fed.R.Civ.P. 8(a). Plaintiff's claims must be set forth
simply, concisely and directly. Fed.R.Civ.P. 8(d)(1).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.
2010), cert. denied, 564 U.S. 1037 (2011).
court applies the same rules of construction in determining
whether the complaint states a claim on which relief can be
granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(court must accept the allegations as true); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (court must construe
the complaint in the light most favorable to the plaintiff).
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). A formulaic
recitation of the elements of a cause of action does not
suffice to state a claim. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
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.” 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. A pro se litigant is entitled to notice of the
deficiencies in the complaint and an opportunity to amend,
unless the complaint's deficiencies could not be cured by
amendment. See Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987).
brings suit against Donnie Barrackas, whom she alleges is a
citizen of Sacramento, California and who holds the job or
title of “Sponsorship w/ USA.” ECF No. 1 at 2.
Plaintiff checks a box marking the basis for jurisdiction as
federal question. Id. at 3. When asked to provide
the specific federal law or constitutional provision
providing federal question jurisdiction, plaintiff wrote
“civil right[.] This person Donnie Barrackas no longer
would like to be my childrens sponsorship.”
Id. at 4. Plaintiff alleges that defendant Barrackas
says he can no longer sponsor plaintiff's children
because they have been with him almost as much as he could
help them, and there is no argument. Id. at 5. When
asked to state her desired relief, plaintiff wrote that she
is her children's sponsor now and she would like to say
“thank you, ” and that she understands he can now
only take a few of her children under 18. Id. at 6.
plaintiff's complaint contains no basis for federal
jurisdiction it must bet dismissed with prejudice.
“Federal courts are courts of limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). In 28 U.S.C.
§§ 1331 and 1332(a), “Congress granted
federal courts jurisdiction over two general types of cases:
cases that “aris[e] under” federal law, §
1331, and cases in which the amount in controversy exceeds $
75, 000 and there is diversity of citizenship among the
parties, § 1332(a). These jurisdictional grants are
known as “federal-question jurisdiction” and
“diversity jurisdiction, ” respectively. Home
Depot U.S. A., Inc. v. Jackson, __ U.S. __, 139 S.Ct.
1743, 1746 (2019), reh'g denied, No. 17-1471,
2019 WL 3538074 (U.S. Aug. 5, 2019).
court notes that diversity cannot serve as a basis for
jurisdiction because plaintiff alleges that both plaintiff
and defendant are California citizens. ECF No. 1 at 4.
Plaintiff's case alleges jurisdiction based on federal
question. Id. at 3. There is no federal question
jurisdiction available because no federal law or
constitutional right is at issue in this case. A case
“arises under” federal law either where federal
law creates the cause of action or “where the
vindication of a right under state law necessarily turn[s] on
some construction of federal law.” Republican Party
of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir.
2002) (quoting Franchise Tax Bd. v. Construction Laborers
Vacation Trust, 463 U.S. 1, 8-9 (1983)). “[T]he
presence or absence of federal-question jurisdiction is
governed by the ‘well-pleaded complaint rule,'
which provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Id. at 1089 (quoting Rivet v. Regions Bank,
522 U.S. 470, 475 (1998)). Plaintiff's complaint does not
invoke any federal law or constitutional right. Though
plaintiff did indicate “civil rights” as a basis
for jurisdiction, the court is aware of no federal law or
constitutional provision that could be invoked where an
individual who was sponsoring children in the U.S.A. declines
to continue to do so, and the plaintiff would like to thank
that person for their service. ECF No. 1 at 5-6.
extent that plaintiff may be attempting to set forth a claim
for breach of an affidavit of support pursuant to 8 C.F.R.
§ 213(a), plaintiff cannot do so as a pro se plaintiff
on behalf of minor children. Section 213a.3(d), Title 8 of
the Code of Federal Regulations states in relevant part that
a “sponsored immigrant ... may seek enforcement of the
sponsor's obligations [under the affidavit of support]
through an appropriate civil action.” This regulation
is promulgated under 8 U.S.C. § 1183a, which also
expressly creates a private right of action allowing a
sponsored immigrant to enforce an affidavit of support. 8
U.S.C. § 1183a(e) (“An action to enforce an
affidavit of support ... may be brought against the sponsor
in any appropriate court by a sponsored alien, with respect
to financial support.”). However, despite the existence
of a possible cause of action, it is clear in the Ninth
Circuit that “a parent or guardian cannot bring an
action on behalf of a minor child without retaining a
lawyer.” Johns v. County of San Diego, 114
F.3d 874, 877 (9th Cir. 1997). Thus, plaintiff cannot pursue
the only possibly available federal cause of action
potentially invoked by a very liberal construction of the
there is no federal jurisdiction, the undersigned recommends
that this case be dismissed and that leave to amend not
granted in this instance because, in light of the facts at
issue in this case, the complaint's ...