# Moore v. Pacific View Apartments Carlsbad LLC > District Court, S.D. California · June 27, 2023 URL: https://www.frixlaw.com/law-library/cases/10087836 ## Case - **Court:** District Court, S.D. California - **Decided:** June 27, 2023 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087836 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 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; 15 JOHN DOE; JULIA JANE DOE, 16 Defendants. 17 18 On May 4, 2023, Plaintiff, proceeding pro se, filed a complaint along with a motion 19 to proceed in forma pauperis (“IFP”) and a motion for appointment of counsel. Plaintiff 20 filed an amended complaint on May 11, 2023. On June 22, 2023, Plaintiff filed a motion 21 for a hearing on the merits of her action and a request for an injunction. All parties 22 instituting any civil action, suit or proceeding in a district court of the United States, except 23 an application for writ of habeas corpus, must pay a filing fee of $454. See 28 U.S.C. § 24 1914(a); CivLR 4.5. A court may authorize the commencement of a suit without 25 26 27 28 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 25 26 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 28 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 15 16 JQHN A. HOUSTON 7 Ynited States District Judge 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087836. Public record. Not legal advice.