United States District Court, N.D. California
ORDER GRANTING IN FORMA PAUPERIS APPLICATION; REPORT
AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT RE:
DKT. NO. 1
A WESTMORE, United States Magistrate Judge.
October 10, 2019, Plaintiff Vinton Frost 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
has, however, declined the jurisdiction of the undersigned,
so the case is reassigned to a district judge with the
RECOMMENDATION that it be dismissed with leave to amend
pursuant to 28 U.S.C. § 1915.
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.
courts of limited jurisdiction, “federal courts have an
independent obligation to ensure that they do not exceed the
scope of their jurisdiction.” Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2011);
Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116
(9th Cir. 2004) (noting that district courts are
“obligated to consider sua sponte whether [they] have
subject matter jurisdiction”). There are two bases for
federal subject matter jurisdiction: (1) federal question
jurisdiction under 28 U.S.C. § 1331 and (2) diversity
jurisdiction under 28 U.S.C. § 1332. A district court
has federal question jurisdiction in “all civil actions
arising under the Constitution, laws, or treaties of the
United States.” Id. at § 1331. A cause of
action “arises under federal law only when the
plaintiff's well-pleaded complaint raises issues of
federal law.” Hansen v. Blue Cross of Cal.,
891 F.2d 1384, 1386 (9th Cir. 1989). A district court has
diversity jurisdiction “where the matter in controversy
exceeds the sum or value of $75, 000 . . . and is between
citizens of different states, or citizens of a State and
citizens or subjects of a foreign state.” Id.
Plaintiff appears to be alleging that employees of the Westin
Hotel in Palo Alto conspired with an unidentified federal
agency to deprive him of his rights. (Compl., Dkt. No. 1 at
4.) The incident, however, appears to have occurred five
years ago, which, without more, would appear to be outside
the statute of limitations period for one or all of the
claims. There is also no indication that, even if Plaintiff s
lawsuit was timely filed, that he exhausted his
administrative remedies for every claim he appears to allege.
Moreover, Plaintiff cites two criminal statutes as his basis
for jurisdiction, but those statutes do not provide a private
right of action. Henry v. Universal Tech. Inst, 559
Fed.Appx. 648, 650 (9th Cir. 2014) (no private right of
action under 18 U.S.C. § 371); see, e.g., Murphy v.
Bank of New YorkMellon, No. 14-CV-02030-JST, 2014 WL
4222188, at *5 (N.D. Cal. Aug. 25, 2014) (no private right of
action under 18 U.S.C. § 1001). Lastly, Plaintiff seeks
to incorporate a complaint filed in a prior case, which is
improper. (Compl. at 4.) Instead, Plaintiffs complaint must
be complete in itself without reference to the prior or
superseded pleading, let alone a pleading from another
lawsuit. Thus, Plaintiff has failed to set forth “a
short and plain statement of the claim showing that the
pleader is entitled to relief as required by Rule 8 of the
Federal Rules of Civil Procedure.
the Court concludes that the complaint does not satisfy
Section 1915 review.
reasons set forth above, Plaintiffs application to proceed
in forma pauperis is GRANTED. However, the
undersigned finds that the allegations in Plaintiffs
complaint are insufficient under 28 U.S.C. § 1915(e)(2).
Since Plaintiff has declined the jurisdiction of the
undersigned magistrate judge, the case is REASSIGNED to a
district judge with the RECOMMENDATION that the complaint be
dismissed with leave to amend.
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.
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