The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ROBET HEIZELMAN, Case No.: 22-cv-1676-GPC-AHG
12 Plaintiff,
ORDER GRANTING PLAINTIFF’S
13 v. MOTION TO PROCEED IN FORMA
PAUPERIS; SUA SPONTE
14 CHASE BANK,
DISMISSING COMPLAINT FOR
15 Defendant. FAILURE TO STATE A CLAIM
AND FOR LACK OF SUBJECT
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MATTER JURISDICTION; AND
17 DENYING MOTION TO APPOINT
COUNSEL AS MOOT
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19 [ECF Nos. 2, 3]
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On October 27, 2022, Plaintiff Robet Heizelman (“Plaintiff”), proceeding pro se,
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filed a Complaint against Defendant Chase Bank (“Defendant”). ECF No. 1. Plaintiff
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concurrently filed a Motion to Proceed in forma pauperis (“IFP”) and a Motion to
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Appoint Counsel. ECF Nos. 2, 3. For the reasons below, the Court GRANTS Plaintiff’s
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Motion to Proceed IFP; sua sponte DISMISSES Plaintiff’s Complaint for failure to state
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a claim pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) and for lack of subject matter
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jurisdiction; and DENIES Plaintiff’s Motion to Appoint Counsel as MOOT.
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1 I. Motion to Proceed In Forma Pauperis
2 All parties instituting any civil action, suit, or proceeding in a United State district
3 court, except an application for writ of habeas corpus, must pay a filing fee of $402. See
4 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to prepay the
5 entire fee only if he is granted leave to proceed IFP pursuant to §1915(a). See Andrews v.
6 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177
7 (9th Cir. 1999). The plaintiff must submit an affidavit demonstrating his inability to pay
8 the filing fee, and the affidavit must include a complete statement of the plaintiff’s assets.
9 28 U.S.C. § 1915(a)(1). “To satisfy the requirements of 28 U.S.C. § 1915, applicants
10 must demonstrate that because of poverty, they cannot meet court costs and still provide
11 themselves, and any dependents, with the necessities of life.” Soldani v. Comm’r of Soc.
12 Sec., 2019 WL 2160380, at *1 (E.D. Cal. Jan. 31, 2019). Courts may consider the federal
13 poverty guidelines set by the United States Department of Health and Human Services as
14 well as income in the context of overall expenses and other factors, including savings and
15 debts, in ruling on IFP applications. McKinley v. Cnty. Of Fresno, 2021 WL 3007162, at
16 *1 (E.D. Cal. July 15, 2021).
17 Here, Plaintiff submitted a form stating he is “on SSI only.” See ECF No. 2.
18 Plaintiff does not disclose the amount of benefits he receives each month and simply
19 writes “NA” for all categories of income and expenses. Id. Plaintiff states his only assets
20 are two cars, each valued at $2,000. Id. at 3. However, it appears Plaintiff is presently
21 homeless, and as such, the Court finds that he has demonstrated that “because of poverty”
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24 1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of
$52, in addition to the $350 filing fee set by statute. See 28 U.S.C. §1914(a) (Judicial
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Conference Schedule of Fees, District Court Misc. Fee Schedule, §14 (eff. Dec. 1,
26 2020)). The $52 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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1 he can’t “meet court costs and still provide [himself] . . . with the necessities of life.”
2 Soldani, 2019 WL 2160380, at *1. Thus, the Court GRANTS Plaintiff’s Motion to
3 Proceed IFP.
4 II. Sua Sponte Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)
5 A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is
6 subject to mandatory sua sponte review and dismissal by the Court if it is “frivolous, or
7 malicious; fails to state a claim upon which relief may be granted; or seeks monetary
8 relief against a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun
9 v. Stahl, 254 JF.3d 845, 845 (9th Cir. 2001) (“[T[he provisions of 28 U.S.C. §
10 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27
11 (9th Cir. 2000). 28 U.S.C. § 1915(e)(2) mandates that a court reviewing a complaint filed
12 pursuant to the IFP provisions of 28 U.S.C. § 1915 rule on its own motion to dismiss
13 before directing that the complaint be served by the U.S. Marshal pursuant to Federal
14 Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127.
15 The requirements under 28 U.S.C. § 1915(e)(2)(B)(ii) are analogous to those under
16 Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Under Rule 8(a)(2), a pleading must
17 contain “a short and plain statement of the claim showing that the pleader is entitled to
18 relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not give “detailed factual
19 allegations,” a plaintiff must plead sufficient facts that, if true, raise a right to relief above
20 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). To state
21 a claim upon which relief may be granted “a complaint must contain sufficient factual
22 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
23 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is
24 facially plausible when the factual allegations permit “the court to draw the reasonable
25 inference that the defendant is liable for the misconduct alleged.” Id.
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1 Here, although difficult to read and understand, Plaintiff’s Complaint appears to
2 allege that Chase Bank “refused to cash [his] check at multiple branches [and] only
3 wanted [him] to deposit it for 3 days knowing it was legit.” ECF No. 1 at 2. Plaintiff
4 states this “caused [him] great distress” and that he “caused a lot of trouble at each
5 branch” because “no one would tell [him] why they couldn’t cash it.” Id. The Court finds
6 Plaintiff’s Complaint as presently pled fails to state a claim upon which relief can be
7 granted because Plaintiff does not state the relevant law under which he brings his claim.
8 See Bradley v. Studio 15, Hous. Partners L.P., 2022 WL 5265143, at *2 (S.D. Cal. Oct.
9 5, 2022). The Court is not able to determine if Plaintiff pled sufficient facts to plausibly
10 support a claim for relief because the Court is unable to determine the relevant law. As
11 such, the Court sua sponte DISMISSES the Complaint for failing to state a claim.
12 Moreover, “[f]ederal courts are courts of limited jurisdiction.” Kokkonen v.
13 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a
14 cause lies outside this limited jurisdiction, and the burden of establishing the contrary
15 rests upon the party asserting jurisdiction.” Id. It is well-established that a federal court
16 cannot reach the merits of any dispute until it confirms that it retains subject matter
17 jurisdiction to adjudicate the issues presented. Steel Co. v. Citizens for a Better Env’t, 523
18 U.S. 83, 94-95 (1988).
19 Federal subject matter jurisdiction may be based on (1) federal question
20 jurisdiction under 28 U.S.C. §1331 or (2) diversity jurisdiction under 28 U.S.C. § 1332.
21 The complaint must establish either that federal law creates the cause of action or that the
22 plaintiff’s right to relief necessarily depends on the resolution of substantial questions of
23 federal law. Franchise Tax Board of Cal. V. Constr. Laborers Vacation Tr. for S. Cal.,
24 463 U.S. 1, 10-11 (1983). Alternatively, a federal court may have diversity jurisdiction
25 over an action involving citizens of different states where the amount in controversy
26 exceeds $75,000. 28 U.S.C. § 1332. “The essential elements of diversity jurisdiction,
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1 including the diverse residence of all parties, must be affirmatively alleged in the
2 pleadings.” Bautista v. Pan Am. World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987).
3 Here, because Plaintiff does not state the law under which he brings his claim,
4 Plaintiff does not assert a basis for the Court’s subject matter jurisdiction. No federal
5 question jurisdiction or diversity jurisdiction has been alleged or appears to exist. Thus,
6 the Court also DISMISSES the Complaint for lack of subject matter jurisdiction.
7 III. Motion for Appointment of Counsel
8 The Constitution provides no right to appointment of counsel in a civil case unless
9 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept.
10 of Soc. Servs., 452 U.S. 18, 25 (1981). Under 28 U.S.C. § 1915(e)(1), however, district
11 courts are granted discretion to appoint counsel for indigent persons under “exceptional
12 circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Here, because
13 the Court sua sponte dismisses Plaintiff’s Complaint for failure to state a claim upon
14 which relief can be granted and for lack of federal subject matter jurisdiction, the Court
15 DENIES Plaintiff’s request for appointment of counsel as MOOT.
16 CONCLUSION
17 Based on the above, the Court GRANTS Plaintiff’s Motion to Proceed in forma
18 pauperis, sua sponte DISMISSES the Complaint for failure to state a claim and for lack
19 of subject matter jurisdiction, and DENIES Plaintiff’s Motion for Appointment of
20 Counsel as MOOT. In the event Plaintiff seeks to file an Amended Complaint, he must
21 do so no later than March 17, 2023. If Plaintiff chooses to file an Amended Complaint,
22 he must clearly state the relevant law(s) under which his claim is brought, and he must
23 plead sufficient facts to plausibly state a claim under the law. In addition, he must clearly
24 assert a basis for the Court’s subject matter jurisdiction.
25 If Plaintiff does not file an Amended Complaint, the Court will dismiss the
26 Complaint with prejudice.
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1 IT IS SO ORDERED.
2 Dated: February 9, 2023 Caroko 0X? |
3 Hon. athe Ck
4 United States District Judge
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