1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 SAMUEL SMITH, Case No. 25-cv-01002-CRB

9 Plaintiff,

ORDER GRANTING IN FORMA

10 v.

PAUPERIS APPLICATION AND

SCREENING COMPLAINT

11 SHAMROCK CONDOMINIUM (HOA), et al., 12 Defendants. 13 14 Plaintiff Samuel Smith filed a pro se complaint and application to proceed in forma 15 pauperis. See Compl. (dkt. 1); IFP App. (dkt. 2). 28 U.S.C. § 1915(a) authorizes the Court 16 to permit a plaintiff to file a federal lawsuit without prepayment of fees or security so long 17 as the plaintiff submits an affidavit showing that he is unable to pay the fees or give 18 security. Smith states that his only income consists of social security payments, that he has 19 a 2003 Ford F150 truck and no other assets, and that he has over $2,000 in monthly 20 expenses. IFP App. at 2–4. Based on this information, the Court finds that Smith has 21 demonstrated that he is unable to pay the filing fee and GRANTS his IFP application. 22 The IFP statute further requires the Court to screen the complaint and dismiss the 23 case if, among other things, the complaint is frivolous, malicious, or fails to state a claim 24 on which relief may be granted. 28 U.S.C. § 1915(e)(2). The Court also must determine 25 on its own whether the plaintiff has asserted a basis for federal jurisdiction. Valdez v. 26 Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004). If the Court determines that subject 27 matter jurisdiction is lacking, it must dismiss the case. Id.; Fed. R. Civ. P. 12(h)(3). 1 diversity of citizenship among the parties (that is, if the parties are from different states) or 2 if there is a federal question at issue. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 3 U.S. 375, 377 (1994).1 4 The thrust of Smith’s complaint is that the defendants, Shamrock Condominium 5 HOA and B&D Towing Company, unlawfully conspired to tow his Ford F150 truck. 6 Compl. at 1. Smith asserts that federal question jurisdiction exists because he brings his 7 claims under the Fifth and Fourteenth Amendments to the U.S. Constitution. Id. at 2. But 8 claims brought directly under the Constitution are “disfavored.” See Egbert v. Boule, 596 9 U.S. 482, 491 (2022). Before authorizing a cause of action under the Constitution, courts 10 must ask “whether there is any reason to think that Congress might be better equipped to 11 create a damages remedy.” Id. at 492. For this case, which is akin to a run-of-the-mill tort 12 claim for conversion, Congress (or, more likely, a state legislature) is surely better situated 13 to provide a remedy. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73–74 (2001) 14 (existence of state tort remedies undercuts viability of claim brought directly under the 15 Constitution). As such, Smith’s claims directly under the Constitution are not viable. 16 Even if the Court construes Smith’s complaint liberally as asserting claims pursuant 17 to 42 U.S.C. § 1983 (the vehicle by which constitutional claims are typically asserted, see 18 Hernández v. Mesa, 589 U.S. 93, 109–10 (2020)), that would not save Smith’s claims. 19 Section 1983 claims require allegations of conduct that is “fairly attributable to the State” 20 and lie only against individuals who “may fairly be said to be [] state actor[s].” Lugar v. 21 Edmondson Oil Co., 457, U.S. 922, 937 (1982). In other words, § 1983 does not provide 22 any remedy for “merely private conduct” like that alleged here. Am. Mfrs. Mut. Ins. Co. 23 v. Sullivan, 526 U.S. 40, 50 (1999) (citation omitted). Smith even alleges that Defendants 24 “have no Oath of government office.” Compl. at 2. That proves fatal to his constitutional 25 claims against them and demonstrates the lack of any federal claim. 26 1 Smith does not allege diversity jurisdiction. Further, it is implausible that diversity of 27 citizenship would exist here, given that one Defendant is the homeowner association of the 1 Because Smith relies entirely on federal question jurisdiction, which is lacking, 2 || Smith fails to adequately allege that the Court has subject matter jurisdiction over his 3 || claims. The Court hereby DISMISSES WITH PREJUDICE Smith’s complaint pursuant 4 |} to28 U.S.C. § 1915. Given Smith’s affirmative representation that Defendants were 5 || private actors with “no Oath of government office,” any amendment to his Complaint 6 would be futile. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990) 7 || (amendments must be “consistent with the challenged pleading” and not “contradict[] any 8 || of the allegations of [the] original complaint” (citation omitted)). So despite Smith’s pro 9 || se status, “it is absolutely clear that no amendment can cure the defect” in his complaint. 10 || Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). 11 IT ISSO ORDERED. Dated: February 4, 2025 xo AB 5 CHARLES R. BREYER = 13 United States District Judge 14

15

(16

© 17

19 20 21 22 23 24 25 26 27 28