Gottlieb

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 SERENA RUIZ, Case No. 2:26-cv-00289-DAD-CSK

12 Plaintiff,

FINDINGS AND RECOMMENDATIONS

13 v.

(ECF Nos. 1, 2)

14 BRIAN GOTTLIEB,

15 Defendant.

16

17 Plaintiff Serena Ruiz is representing herself in this action and seeks leave to

18 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) For the

19 reasons that follow, the Court recommends Plaintiff’s IFP application be denied, and the

20 Complaint be dismissed without leave to amend.

21 I. MOTION TO PROCEED IN FORMA PAUPERIS

22 28 U.S.C. § 1915(a) provides that the court may authorize the commencement,

23 prosecution or defense of any suit without prepayment of fees or security “by a person

24 who submits an affidavit stating the person is “unable to pay such fees or give security

25 therefor.” This affidavit is to include, among other things, a statement of all assets the

26 person possesses. Id. The IFP statute does not itself define what constitutes insufficient

27

1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R.

28 Civ. P. 72, and Local Rule 302(c).

1 assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In Escobedo,

2 the Ninth Circuit stated that an affidavit in support of an IFP application is sufficient

3 where it alleges that the affiant cannot pay court costs and still afford the necessities of

4 life. Id. “One need not be absolutely destitute to obtain benefits of the in forma pauperis

5 statute.” Id. Nonetheless, a party seeking IFP status must allege poverty “with some

6 particularity, definiteness and certainty.” Id. According to the United States Department

7 of Health and Human Services, the current poverty guideline for a household of one (not

8 residing in Alaska or Hawaii) is $15,960.00 and $21,640 for a household of two. See

9 U.S. Dpt. Health & Human Service (available at https://aspe.hhs.gov/poverty-guidelines).

10 Here, Plaintiff has made the required showing under 28 U.S.C. § 1915(a). See

11 ECF No. 2. However, the Court recommends Plaintiff’s IFP application be denied

12 because the action is facially frivolous or without merit because it fails to state a claim

13 and lacks subject matter jurisdiction. “‘A district court may deny leave to proceed in

14 forma pauperis at the outset if it appears from the face of the proposed complaint that

15 the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115

16 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Tr., 821 F.2d 1368, 1370 (9th Cir.

17 1987)); see also McGee v. Dep’t of Child Support Servs., 584 Fed. App’x 638 (9th Cir.

18 2014) (“the district court did not abuse its discretion by denying McGee's request to

19 proceed IFP because it appears from the face of the amended complaint that McGee's

20 action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)

21 (“It is the duty of the District Court to examine any application for leave to proceed in

22 forma pauperis to determine whether the proposed proceeding has merit and if it

23 appears that the proceeding is without merit, the court is bound to deny a motion

24 seeking leave to proceed in forma pauperis.”). Because it appears from the face of the

25 Complaint that this action is frivolous or without merit as discussed in more detail below,

26 the Court recommends denying Plaintiff’s IFP motion.

27 / / /

28 / / /

1 II. SCREENING REQUIREMENT

2 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis

3 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to

4 state a claim on which relief may be granted,” or “seeks monetary relief against a

5 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith,

6 203 F.3d 1122, 1126-27 (2000) (en banc). A claim is legally frivolous when it lacks an

7 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In

8 reviewing a complaint under this standard, the court accepts as true the factual

9 allegations contained in the complaint, unless they are clearly baseless or fanciful, and

10 construes those allegations in the light most favorable to the plaintiff. See Neitzke, 490

11 U.S. at 327; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960

12 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011).

13 Pleadings by self-represented litigants are liberally construed. Hebbe v. Pliler, 627

14 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even post-Iqbal).

15 However, the court need not accept as true conclusory allegations, unreasonable

16 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d

17 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does

18 not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007);

19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

20 To state a claim on which relief may be granted, the plaintiff must allege enough

21 facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A

22 claim has facial plausibility when the plaintiff pleads factual content that allows the court

23 to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

24 Iqbal, 556 U.S. at 678. A pro se litigant is entitled to notice of the deficiencies in the

25 complaint and an opportunity to amend unless the complaint’s deficiencies could not be

26 cured by amendment. See Lopez, 203 F.3d at 1130-31; Cahill v. Liberty Mut. Ins. Co., 80

27 F.3d 336, 339 (9th Cir. 1996).

28 / / /

1 III. DISCUSSION

2 A. Lack of Subject Matter Jurisdiction

3 Federal courts are courts of limited jurisdiction and may hear only those cases

4 authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

5 Jurisdiction is a threshold inquiry, and “[f]ederal courts are presumed to lack jurisdiction,

6 ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516,

7 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546

8 (1986)); see Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858

9 F.2d 1376, 1380 (9th Cir. 1988). Without jurisdiction, the district court cannot decide the

10 merits of a case or order any relief and must dismiss the case. See Morongo, 858 F.2d

11 at 1380. A federal court’s jurisdiction may be established in one of two ways: actions

12 arising under federal law or those between citizens of different states in which the

13 alleged damages exceed $75,000. 28 U.S.C. §§ 1331, 1332. “Subject-matter jurisdiction

14 can never be waived or forfeited,” and “courts are obligated to consider sua sponte”

15 subject matter jurisdiction even when not raised by the parties. Gonzalez v. Thaler, 565

16 U.S. 134, 141 (2012).

17 The Complaint does not establish the Court’s subject matter jurisdiction. See

18 Compl. (ECF No. 1). The Complaint, in its entirety, states the following: “Defendant, what

19 others described as kind-hearted, failed to remain the same when doing his job, [w]hen

20 adjudicating issues, he showed tardiness, leaving things undecided[.] Plaintiff requests

21 an issuance of mandamus for Brian Gottlieb to resolve the backlog as soon as possible,

22 which this Court has jurisdiction.” Id. It is clear from review of the Complaint that there is

23 no federal question raised. Moreover, the Complaint also fails to establish diversity

24 jurisdiction. Plaintiff does not allege any amount in controversy or establish complete

25 diversity of citizenship. See Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th

26 Cir. 2001) (“Section 1332 requires complete diversity of citizenship; each of the plaintiffs

27 must be a citizen of a different state than each of the defendants.”). Because there is no

28 diversity of citizenship established or amount in controversy alleged here, the Court finds

1 that it also lacks subject matter jurisdiction based on diversity jurisdiction. Therefore, the

2 Court recommends this action be dismissed because the Court lacks subject matter

3 jurisdiction over this action.

4 B. Failure to Comply with Federal Rule of Civil Procedure 8

5 Plaintiff’s Complaint also does not contain a short and plain statement of a claim

6 as required by Federal Rule of Civil Procedure 8. In order to give fair notice of the claims

7 and the grounds on which they rest, a plaintiff must allege with at least some degree of

8 particularity overt acts by specific defendants which support the claims. See Kimes v.

9 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Here, the Complaint does not contain facts

10 supporting any cognizable legal claim against Defendant. The Complaint consists of

11 vague and conclusory allegations that fail to raise or establish a cause of action.

12 Because the Complaint is unintelligible, granting leave to amend in this case

13 would not be fruitful. Although the Federal Rules adopt a flexible pleading policy, even a

14 pro se litigant’s complaint must give fair notice and state the elements of a claim plainly

15 and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

16 The Complaint therefore fails to state a claim on which relief may be granted and is

17 subject to dismissal. See McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996)

18 (affirming dismissal of complaint where “one cannot determine from the complaint who is

19 being sued, for what relief, and on what theory, with enough detail to guide discovery”).

20 C. Leave to Amend

21 In considering whether leave to amend should be granted, the Court considers

22 that Plaintiff’s Complaint lacks subject matter jurisdiction and does not comply with the

23 requirements of Federal Rule of Civil Procedure 8. Based on these deficiencies, it

24 appears granting leave to amend would be futile. The Complaint should therefore be

25 dismissed without leave to amend. See Lopez, 203 F.3d at 1130-31; Cato v. United

26 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995).

27 / / /

28 / / /

1 | IV. CONCLUSION

2 Based upon the findings above, it is RECOMMENDED that:

3 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) be DENIED;

4 2. Plaintiffs Complaint (ECF No. 1) be DISMISSED without leave to amend;

5 and

6 3. The Clerk of the Court be directed to CLOSE this case.

7 These findings and recommendations are submitted to the United States District

8 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

9 | 14 days after being served with these findings and recommendations, any party may file

10 | written objections with the Court and serve a copy on all parties. This document should

11 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any

12 | reply to the objections shall be served on all parties and filed with the Court within 14

13 | days after service of the objections. Failure to file objections within the specified time

14 | may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449,

15 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

16

17 || Dated: April 2, 2026 Cc (i s □□

18 CHI SOO KIM

49 UNITED STATES MAGISTRATE JUDGE

20 || 4, ruizo289.26

21

22

23

24

25

26

27

28