1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 YVONNE JENSEN, Case No. 2:24-cv-01289-DJC-CSK 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 CITY AND COUNTY OF SAN

FRANCISCO DEPARTMENT OF

15 CHILD AND YOUTH SERVICES, et al., (ECF Nos. 1, 2, 3) 16 Defendants. 17 18 Plaintiff Yvonne Jensen is representing herself in this action and seeks leave to 19 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) For the 20 reasons outlined below, the Court recommends Plaintiff’s IFP request be DENIED, and 21 the Complaint2 be dismissed without leave to amend for lack of subject matter 22 jurisdiction and failure to state a claim. 23 / / / 24 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 25 Civ. P. 72, and Local Rule 302(c). 26 2 Plaintiff filed a pleading labeled as a purported removal of a state court action. See ECF No. 1. Because there is no indication that this is a true and proper removal, 27 Plaintiff’s filing is construed as a Complaint initiating action in this federal court. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (liberal construction appropriate of pro 28 se pleadings). 1 I. MOTION TO PROCEED IN FORMA PAUPERIS 2 28 U.S.C. § 1915(a) provides that the court may authorize the commencement, 3 prosecution or defense of any suit without prepayment of fees or security “by a person 4 who submits an affidavit stating the person is “unable to pay such fees or give security 5 therefor.” This affidavit is to include, among other things, a statement of all assets the 6 person possesses. Id. The IFP statute does not itself define what constitutes insufficient 7 assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In Escobedo, 8 the Ninth Circuit stated that an affidavit in support of an IFP application is sufficient 9 where it alleges that the affiant cannot pay court costs and still afford the necessities of 10 life. Id. “One need not be absolutely destitute to obtain benefits of the in forma pauperis 11 statute.” Id. Nonetheless, a party seeking IFP status must allege poverty “with some 12 particularity, definiteness and certainty.” Id. According to the United States Department 13 of Health and Human Services, the current poverty guideline for a household of 1 (not 14 residing in Alaska or Hawaii) is $15,060.00. See U.S. Dpt. Health & Human Service 15 (available at https://aspe.hhs.gov/poverty-guidelines). 16 Here, Plaintiff’s affidavit indicates she receives a gross wage of $24 per hour, and 17 a take-home biweekly wage of $1,400, i.e., $33,600 annually, with a monthly net income 18 of $2,800. See ECF No. 2. Plaintiff states she has no liquid assets and has monthly 19 expenses of approximately $2,275. Id. 20 Thus, Plaintiff’s gross household income significantly exceeds the 2024 poverty 21 guideline and she has approximately $525 per month remaining in expendable income. 22 Given this, the Court cannot find Plaintiff unable to pay. See Escobedo, 787 F.3d at 23 1234. While the Court is sympathetic to Plaintiff’s situation, she is not indigent and 24 numerous litigants in this court have significant monthly expenditures. Thus, the Court 25 recommends Plaintiff’s IFP motion be denied. See Tripati v. Rison, 847 F.2d 548 (9th 26 Cir. 1988) (absent consent of all parties, magistrate judge lacks authority to issue 27 dispositive order denying in forma pauperis status). 28 Further, “[a] district court may deny leave to proceed in forma pauperis at the 1 outset if it appears from the face of the proposed complaint that the action is frivolous or 2 without merit.” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting 3 Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee 4 v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the district 5 court did not abuse its discretion by denying McGee's request to proceed IFP because it 6 appears from the face of the amended complaint that McGee's action is frivolous or 7 without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 8 District Court to examine any application for leave to proceed in forma pauperis to 9 determine whether the proposed proceeding has merit and if it appears that the 10 proceeding is without merit, the court is bound to deny a motion seeking leave to 11 proceed in forma pauperis.”). The Court therefore also recommends Plaintiff’s IFP 12 motion be denied because, as discussed in more detail below, it appears from the face 13 of the Complaint that this action is frivolous and lacks merit. 14 Presently, a filing fee of $405.00 is required to commence a civil action in this 15 court. In recognition of Plaintiff’s financial resources, the Court finds it appropriate to 16 allow Plaintiff the opportunity to pay the filing fee in three (3) monthly installments until 17 the full filing fee is satisfied. 18 II. SCREENING REQUIREMENT 19 Even if the Court were to grant Plaintiff’s IFP motion, Plaintiff’s Complaint 20 warrants dismissal pursuant to 28 U.S.C. § 1915(e)’s required pre-answer screening. 21 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 22 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to 23 state a claim on which relief may be granted,” or “seeks monetary relief against a 24 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 25 203 F.3d 1122, 1126-27 (2000) (en banc). A claim is legally frivolous when it lacks an 26 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 27 reviewing a complaint under this standard, the court accepts as true the factual 28 allegations contained in the complaint, unless they are clearly baseless or fanciful, and 1 construes those allegations in the light most favorable to the plaintiff. See Neitzke, 490 2 U.S. at 327; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 3 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011). 4 Pleadings by self-represented litigants are liberally construed. Hebbe, 627 F.3d at 5 342 & n.7 (liberal construction appropriate even post–Iqbal). However, the court need 6 not accept as true conclusory allegations, unreasonable inferences, or unwarranted 7 deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A 8 formulaic recitation of the elements of a cause of action does not suffice to state a claim. 9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 556 U.S. 10 662, 678 (2009). 11 To state a claim on which relief may be granted, the plaintiff must allege enough 12 facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A 13 claim has facial plausibility when the plaintiff pleads factual content that allows the court 14 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 15 Iqbal, 556 U.S. at 678. A pro se litigant is entitled to notice of the deficiencies in the 16 complaint and an opportunity to amend unless the complaint’s deficiencies could not be 17 cured by amendment. See Lopez, 203 F.3d at 1130-31; Cahill v. Liberty Mut. Ins. Co., 80 18 F.3d 336, 339 (9th Cir. 1996). 19 III. DISCUSSION 20 A. Complaint 21 Plaintiff labeled her pleading initiating this federal court action as a purported 22 removal of a state court action. See ECF No. 1. Because there is no indication that this 23 is a true and proper removal, Plaintiff’s filing is properly construed as a Complaint 24 initiating action in this federal court. See Hebbe, 627 F.3d at 342. 25 Plaintiff appears to be challenging an ongoing state court juvenile dependency 26 action involving her minor child. Compl. at 2. (ECF No. 1). Plaintiff alleges that both she 27 and her prior state court attorney, Daryl Lander were not served with the state court 28 filings related to the state court juvenile dependency action. Id. at 3. Plaintiff further 1 alleges her prior state court attorney was “removed without notice or cause.” Id. Plaintiff 2 also attaches various emails, letters and state court filings relating to Plaintiff’s legal 3 representation in the state court juvenile dependency action. See id. at 5-12. 4 B. Lack of Subject Matter Jurisdiction 5 Federal courts are courts of limited jurisdiction and may hear only those cases 6 authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 7 Jurisdiction is a threshold inquiry, and “[f]ederal courts are presumed to lack jurisdiction, 8 ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 9 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 10 (1986)); see Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 11 F.2d 1376, 1380 (9th Cir. 1988). Without jurisdiction, the district court cannot decide the 12 merits of a case or order any relief and must dismiss the case. See Morongo, 858 F.2d 13 at 1380. A federal court’s jurisdiction may be established in one of two ways: actions 14 arising under federal law or those between citizens of different states in which the 15 alleged damages exceed $75,000. 28 U.S.C. §§ 1331, 1332. “Subject-matter jurisdiction 16 can never be waived or forfeited,” and “courts are obligated to consider sua sponte” 17 subject matter jurisdiction even when not raised by the parties. Gonzalez v. Thaler, 565 18 U.S. 134, 141 (2012). 19 The Complaint fails to establish the Court’s subject matter jurisdiction. See 20 Compl. The Complaint states no basis for federal court jurisdiction, and none is 21 apparent. No federal cause of action is asserted, and no federal claims are suggested by 22 the facts, to the extent the facts are discernible. This action involves a state court 23 juvenile dependency matter involving purely state law issues. See Compl. Therefore, the 24 Court lacks subject matter jurisdiction based on federal question. 25 In addition, the Complaint fails to establish diversity jurisdiction. Plaintiff fails to 26 state the amount in controversy and does not establish complete diversity of citizenship. 27 On the face of the Complaint, all parties appear to be citizens of California. See Compl. 28 at 1. Plaintiff also identifies in the civil cover sheet that both Plaintiff and Defendants are 1 citizens of California. Compl. at 13; see Morris v. Princess Cruises, Inc., 236 F.3d 1061, 2 1067 (9th Cir. 2001) (“Section 1332 requires complete diversity of citizenship; each of 3 the plaintiffs must be a citizen of a different state than each of the defendants.”). 4 Because there is no diversity of citizenship established here, the Court finds that it also 5 lacks subject matter jurisdiction based on diversity jurisdiction. 6 C. Failure to Comply with Federal Rule of Civil Procedure 8 7 Plaintiff’s Complaint also does not contain a short and plain statement of a claim 8 as required by Federal Rule of Civil Procedure 8. In order to give fair notice of the claims 9 and the grounds on which they rest, a plaintiff must allege with at least some degree of 10 particularity overt acts by specific defendants which support the claims. See Kimes v. 11 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). The Court is unable to discern what causes 12 of action Plaintiff intends to bring. Although the Federal Rules adopt a flexible pleading 13 policy, even a pro se litigant’s complaint must give fair notice and state the elements of a 14 claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 15 (9th Cir. 1984). 16 The Complaint therefore fails to state a claim on which relief may be granted and 17 is 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 D. Leave to Amend 21 In considering whether leave to amend should be granted, the Court finds that the 22 Complaint is unintelligible and consists entirely of allegations with no basis in law. See 23 generally Compl. The Complaint does not contain facts supporting any cognizable legal 24 claim against Defendants. In light of the Court’s lack of subject matter jurisdiction and the 25 Complaint’s deficiencies, granting leave to amend would be futile. The Complaint should 26 therefore be dismissed without leave to amend. See Lopez, 203 F.3d at 1130-31; Cato 27 v. United States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 28 / / / 1 IV. MOTION FOR ACCESS TO ELECTRONIC FILING 2 Plaintiff requests access to the Court’s electronic case filing system. (ECF No. 3.) 3 The Local Rules are clear that “any person appearing pro se may not utilize electronic 4 filing except with the permission of the assigned Judge or Magistrate Judge.” See Local 5 Rule 133(b)(2). Plaintiff’s motion for access to electronic filing does not provide good 6 cause to deviate from this Local Rule. Thus, Plaintiff’s motion is denied. 7 V. CONCLUSION 8 In accordance with the above, IT IS ORDERED that Plaintiff’s motion for access 9 to electronic filing (ECF No. 3) is DENIED. 10 In addition, IT IS RECOMMENDED that: 11 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED; 12 2. Plaintiff be granted leave to satisfy the filing fee in three (3) monthly 13 installment payments of $135; 14 3. The Complaint be dismissed without leave to amend for lack of subject 15 matter jurisdiction and failure to state a claim, and where amendment 16 would be futile; and 17 4. The Clerk of the Court be directed to CLOSE this case. 18 These findings and recommendations are submitted to the United States District 19 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 20 14 days after being served with these findings and recommendations, any party may file 21 written objections with the Court and serve a copy on all parties. This document should 22 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 23 reply to the objections shall be served on all parties and filed with the Court within 14 24 days after service of the objections. Failure to file objections within the specified time 25 / / / 26 / / / 27 / / / 28 / / / 1 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 2 || 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 3 4 | Dated: January 6, 2025 C □□ $ \U 5 CHI SOO KIM 6 UNITED STATES MAGISTRATE JUDGE 7 8 || 4, jens1289.24 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28