The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 BRENDA MOORE, Case No.: 23-cv-00826-JAH-WVG
12 Plaintiff,
ORDER DISMISSING CASE AND
13 v. DENYING MOTION TO PROCEED
IN FORMA PAUPERIS
14 PACIFIC VIEW APARTMENTS
CARLSBAD; STEVEN JANE DOE;
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JOHN DOE; JULIA JANE DOE,
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Defendants.
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On May 4, 2023, Plaintiff, proceeding pro se, filed a complaint along with a motion
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to proceed in forma pauperis (“IFP”) and a motion for appointment of counsel. Plaintiff
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filed an amended complaint on May 11, 2023. On June 22, 2023, Plaintiff filed a motion
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for a hearing on the merits of her action and a request for an injunction. All parties
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instituting any civil action, suit or proceeding in a district court of the United States, except
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an application for writ of habeas corpus, must pay a filing fee of $454. See 28 U.S.C. §
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1914(a); CivLR 4.5. A court may authorize the commencement of a suit without
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1 prepayment of fees if the plaintiff submits an affidavit, including a statement of all their
2 assets, showing that they are unable to pay the fees. See 28 U.S.C. § 1915(a).1
3 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by
4 any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a
5 mandatory and sua sponte review and dismissal by the court to the extent it is “frivolous,
6 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary
7 relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v.
8 Stahl, 254 F.3d 845, 845 (9th Cir. 2001). A court must also dismiss an action sua sponte
9 if it determines, at any time, it lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3);
10 see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011). Thus,
11 Section 1915(e)(2) provides the court reviewing any complaint filed by a person
12 proceeding in forma pauperis with the authority and obligation to make and rule on its own
13 motion to dismiss the complaint prior to service, or at any time it becomes clear that the
14 action is frivolous, fails to state a claim, or seeks monetary relief from immune defendants.
15 See Id. at 845.
16 In her complaint, Plaintiff appears to assert claims for defamation, libel, and breach
17 of the covenant of quiet enjoyment. She also refers to negligent property damage, violation
18 of “Constitutional Civil Rights of not being harassed,” denial of “human rights … that all
19 rental property must give.” Compl. at 3 (Doc. No. 1). Additionally, Plaintiff cites to 28
20 U.S.C. § 4101, 42 U.S.C. § 3601, and 26 U.S.C. § 6103. Id. at 2. Plaintiff alleges two
21 residents of and two property managers for Pacific View Apartments knowingly and
22 maliciously made false statements about Plaintiff that were damaging to her reputation and
23 caused her emotional distress, intentionally made excessive loud noise daily that caused
24 her “pain suffering/emotional distress/sleep deprivation,” knowingly wrote false
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27 1 As a result of this Court’s finding upon its sua sponte review of its complaint, the Court does not
address the issue of Plaintiff’s ability or inability to proceed IFP, or Plantiff’s request for a hearing on
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1 defamatory statements about Plaintiff, and destroyed “building property in unit 103
2 Plaintiff(s) unit with the excessive running, stomping, jumping which was told [to]
3 defendant manager . . . ” Id. at 2, 3. Further, Plaintiff alleges the managers failed to take
4 “action against unit 203” when the residents caused personal property damage, “allowed
5 disclosure with unit (203),” and “denied Reasonable Accommodation.” Id.
6 Federal Rule of Civil Procedure 8 requires a complaint to “contain: (1) a short and
7 plain statement of the grounds for the court’s jurisdiction; (2) a short and plain statement
8 of the claim showing the pleader is entitled to relief; and (3) a demand for the relief sought.”
9 Fed. R. Civ. P. 8. Courts have a duty to construe pro se pleadings liberally. Bernhardt v.
10 Los Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003); see Barnett v. Norman, 782 F.3d
11 417, 422, n.2 (9th Cir. 2015) (noting pro se litigants are afforded a different leniency
12 standard) (citing Christensen v. Comm'r, 786 F.2d 1382, 1384–85 (9th Cir.1986)); see also
13 Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (noting that courts hold pro se
14 complaints to “less stringent standards than formal pleadings drafted by lawyers”).
15 However, a court’s liberal construction of a pro se pleading will not apply facts not alleged
16 by the plaintiff. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); see also
17 James v. Lee, 485 F. Supp. 3d 1241, 1251 (S.D. Cal. 2020).
18 Federal courts are courts of limited jurisdiction. Hertz Corp. v. Friend, 559 U.S. 77,
19 84 (2010); see also, Kline v. Burke Const. Co., 260 U.S. 226, 229-30 (1922). To proceed
20 with an action in federal court a plaintiff must establish that the court has subject matter
21 jurisdiction. See Id. There are two types of subject matter jurisdiction – federal question
22 jurisdiction and diversity jurisdiction. See Id. The allegations in the complaint must
23 sufficiently allege subject matter jurisdiction. See Id. Plaintiffs must plead a colorable
24 claim “arising under” the Constitution or laws of the United States to invoke federal-
25 question jurisdiction pursuant to 28 U.S.C. § 1331. Arbaugh v. Y&H Corp., 546 U.S. 500,
26 513 (2006). The presence or absence of federal-question jurisdiction is governed by the
27 “well-pleaded complaint rule,” which provides that federal jurisdiction exists only when a
28 federal question is presented on the face of the plaintiff’s well-pleaded complaint. Abada
1 v. Charles Schwab & Co., 300 F.3d 1112 (9th Cir. 2002). Although Plaintiff cites 28
2 U.S.C. § 4101, which defines “defamation” in foreign judgments, the complaint does not
3 reference a foreign judgment. Plaintiff also alleges she was denied reasonable
4 accommodation under 42 U.S.C. § 3601, which is the policy subsection of the Fair Housing
5 Act. Under the Fair Housing Act, “to discriminate in the sale or rental, or to otherwise
6 make unavailable or deny, a dwelling to any buyer or renter because of a handicap . . . ” is
7 unlawful. U.S.C. § 3604(f)(1). Discrimination includes “a refusal to make reasonable
8 accommodations . . . when such accommodations may be necessary to afford such person
9 equal opportunity to use and enjoy a dwelling.” §3604(f)(3)(B); Howard v. HMK
10 Holdings, LLC, 988 F.3d 1185, 1192 (9th Cir. 2021). Because Plaintiff does not claim to
11 be handicapped, she does not belong to the class of people afforded reasonable
12 accommodation under the Fair Housing Act. Plaintiff also alleges Defendants disregarded
13 her “Constitutional Civil Rights of not being harassed,” but she fails to cite a constitutional
14 right violated by Defendants. Compl. at 3. To the extent she is seeking relief under 42
15 U.S.C. §1983 for a violation of her constitutional rights, Plaintiff must allege Defendants
16 acted under color of state law, and that Defendant’s actions or failure to act deprived
17 Plaintiff of her constitutional rights. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th
18 Cir. 2012) (quoting Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th
19 Cir.2011)). The amended complaint contains no allegations demonstrating Defendants
20 acted under color of state law or that they deprived her of her constitutional rights. Plaintiff
21 also cites 26 U.S.C. § 6103 which governs the disclosure of tax information, but she does
22 not reference tax related information in her complaint. As such, Plaintiff’s allegations do
23 not plainly state a claim arising under a federal law.
24 In addition, Plaintiff’s allegations also appear to allege state law claims. A court
25 may have jurisdiction to hear state law claims pursuant to diversity jurisdiction if a party
26 shows: (1) complete diversity among opposing parties; and (2) an amount in controversy
27 exceeding $75,000. 28 U.S.C. § 1332(a). Plaintiff bears the burden of demonstrating the
28 court has jurisdiction. See In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d
1 || 716, 741 (9th Cir. 2013). According to the allegations of the first amended complaint, two
2 || Defendants live in Pacific View Apartments located in San Diego, and Plaintiff fails to list
3 citizenship of the two Defendants who manage the apartments. Compl. 2. Plaintiff
4 to confirm the complete diversity of citizenship to support this Court’s exercise of
5 ||jurisdiction over the claims. As alleged, Plaintiff fails to establish this Court has
6 jurisdiction over this action.
7 Accordingly, IT IS HEREBY ORDERED:
8 l. Plaintiff's complaint is DISMISSED without prejudice;
9 2. Plaintiff's motion to proceed in forma pauperis is DENIED as moot;
10 3. Plaintiff's motion for a ruling on the merits is DENIED as moot;
11 4. Plaintiffs request for an injunction is DENIED as moot;
12 5. Plaintiff may file an amendment complaint addressing the deficiencies noted
13 above on or before August 1, 2023.
14 ||DATED: June 27, 2023
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16 JQHN A. HOUSTON
7 Ynited States District Judge
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