1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON O. MURPHY ESQ. SR., Case No. 2:24-cv-2589-TLN-CSK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. 14 TRAVELERS INSURANCE (ECF Nos. 1,2)

COMPANY,

15 Defendant. 16 17 Plaintiff Shannon O. Murphy Esq. Sr. is representing himself in this action and 18 seeks leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915.1 (ECF 19 No. 2.) For the reasons that follow, the Court recommends Plaintiff’s IFP application be 20 denied, and the 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 $15,060.00. See U.S. Dpt. Health & Human Service 9 (available at https://aspe.hhs.gov/poverty-guidelines). 10 Here, Plaintiff’s IFP application does not make the financial showing required by 11 28 U.S.C. § 1915(a). Plaintiff’s IFP application indicates during the past 12 months, 12 Plaintiff has received “Business, profession, or other self-employment” and “SSI” for an 13 amount of “$1,201.74.” ECF No. 2 at 1 ¶ 3. However, Plaintiff fails to disclose whether he 14 receives other income from “Rent payments, interests, or dividends,” “Pension, annuity, 15 or life insurance payments,” gifts or inheritances,” or “any other sources.” Id. at 1 ¶¶ 3(b)- 16 (c), (e)-(f). Because of these omissions, Plaintiff's IFP application fails to establish that 17 he is entitled to prosecute this case without paying the required fees. Though the Court 18 cannot make a determination whether Plaintiff qualifies for in forma pauperis status 19 based on his current IFP application, the Court will recommend Plaintiff’s IFP application 20 be denied because the action is facially frivolous and meritless. 21 “‘A district court may deny leave to proceed in forma pauperis at the outset if it 22 appears from the face of the proposed complaint that the action is frivolous or without 23 merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. 24 First Nat. Bank & Tr., 821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee v. Dep’t of 25 Child Support Servs., 584 Fed. App’x. 638 (9th Cir. 2014) (“the district court did not 26 abuse its discretion by denying McGee's request to proceed IFP because it appears 27 from the face of the amended complaint that McGee's action is frivolous or without 28 merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District 1 Court to examine any application for leave to proceed in forma pauperis to determine 2 whether the proposed proceeding has merit and if it appears that the proceeding is 3 without merit, the court is bound to deny a motion seeking leave to proceed in forma 4 pauperis.”). Because it appears from the face of Plaintiff’s Complaint that this action is 5 frivolous and is without merit as discussed in more detail below, the Court recommends 6 Plaintiff’s IFP motion be denied. 7 II. SCREENING REQUIREMENT 8 Even if the Court were to grant Plaintiff’s IFP application, Plaintiff’s Complaint 9 warrants dismissal pursuant to 28 U.S.C. § 1915(e)’s required pre-answer screening. 10 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 11 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to 12 state a claim on which relief may be granted,” or “seeks monetary relief against a 13 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 14 203 F.3d 1122, 1126-27 (2000) (en banc). A claim is legally frivolous when it lacks an 15 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 16 reviewing a complaint under this standard, the court accepts as true the factual 17 allegations contained in the complaint, unless they are clearly baseless or fanciful, and 18 construes those allegations in the light most favorable to the plaintiff. See id. at 326-27; 19 Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 20 2010), cert. denied, 564 U.S. 1037 (2011). 21 Pleadings by self-represented litigants are liberally construed. Hebbe v. Pliler, 627 22 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even post-Iqbal). 23 However, the court need not accept as true conclusory allegations, unreasonable 24 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 25 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does 26 not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); 27 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 28 / / / 1 To state a claim on which relief may be granted, the plaintiff must allege enough 2 facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A 3 claim has facial plausibility when the plaintiff pleads factual content that allows the court 4 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 5 Iqbal, 556 U.S. at 678. A pro se litigant is entitled to notice of the deficiencies in the 6 complaint and an opportunity to amend unless the complaint’s deficiencies could not be 7 cured by amendment. See Lopez, 203 F.3d at 1130-31; Cahill v. Liberty Mut. Ins. Co., 80 8 F.3d 336, 339 (9th Cir. 1996). 9 III. THE COMPLAINT 10 The Complaint alleges the following state law claims against Defendant Travelers 11 Insurance Company: (1) negligence; (2) breach of contract; (3) discrimination; 12 (4) harassment; and (5) assault. Compl. at 1-2 (ECF No. 1). In the Complaint, Plaintiff 13 appears to be challenging a denial of an insurance claim [(FST5982)] by Defendant for 14 an injury that occurred in 2022 at 8:30 p.m. by a “Nation’s Giant Burgers[‘]” delivery truck 15 that was “blocking” Plaintiff from “safe[ly] exit[ing]” in “his lawfully parked Sheetmetal & 16 Associates, an INLC, company vehicle.” Id. at 2, 3. Plaintiff alleges he has a “right to file 17 lawsuit against Travelers Ins., since they failed to proper of jurisdiction, accommodate 18 injury allege cause of them, defendant, at Travelers Ins. Now assault, to jurisdiction 19 cause of action is apply present this court case complaint.” For relief, Plaintiff seeks $8 20 million in monetary damages. Id. at 3. 21 IV. DISCUSSION 22 A. Lack of Subject Matter Jurisdiction 23 The Court lacks subject matter jurisdiction over this action. Federal courts are 24 courts of limited jurisdiction and may hear only those cases authorized by federal law. 25 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Jurisdiction is a threshold 26 inquiry, and “[f]ederal courts are presumed to lack jurisdiction, ‘unless the contrary 27 appears affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 28 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)); see 1 Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 2 (9th Cir. 1988). Without jurisdiction, the district court cannot decide the merits of a case 3 or order any relief and must dismiss the case. See Morongo, 858 F.2d at 1380. A federal 4 court’s jurisdiction may be established in one of two ways: actions arising under federal 5 law or those between citizens of different states in which the alleged damages exceed 6 $75,000. 28 U.S.C. §§ 1331, 1332. “Subject-matter jurisdiction can never be waived or 7 forfeited,” and “courts are obligated to consider sua sponte” subject matter jurisdiction 8 even when not raised by the parties. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). 9 The Complaint does not establish the Court’s subject matter jurisdiction. See 10 Compl. The Complaint states no basis for federal court jurisdiction, and none is 11 apparent. No federal cause of action is asserted, and no federal claims are suggested by 12 the facts, to the extent the facts are discernible. This action involves purely state law 13 issues. See Compl. at 1-2. The Complaint also fails to establish diversity jurisdiction. 14 Although Plaintiff states the amount in controversy is $8 million, Plaintiff does not 15 establish complete diversity of citizenship. On the face of the Complaint, all parties 16 appear to be citizens of California. In the civil cover sheet, Plaintiff indicates that both 17 Plaintiff and Defendant are citizens of California. ECF No. 1-1; see Morris v. Princess 18 Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (“Section 1332 requires complete 19 diversity of citizenship; each of the plaintiffs must be a citizen of a different state than 20 each of the defendants.”). Because there is no diversity of citizenship established here, 21 the Court finds that it also lacks subject matter jurisdiction based on diversity jurisdiction. 22 Therefore, the Court recommends this action be dismissed without leave to amend 23 because the Court lacks subject matter jurisdiction over this action. 24 B. Failure to Comply with Federal Rule of Civil Procedure 8 25 Plaintiff’s Complaint also does not contain a short and plain statement of a claim 26 as required by Federal Rule of Civil Procedure 8. In order to give fair notice of the claims 27 and the grounds on which they rest, a plaintiff must allege with at least some degree of 28 particularity overt acts by specific defendants which support the claims. See Kimes v. 1 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Here, the Complaint does not contain facts 2 supporting any cognizable legal claim against Defendant. The Complaint consists of 3 vague and conclusory allegations that fail to establish Plaintiff’s causes of action. 4 Because the Complaint is unintelligible, granting leave to amend in this case would not 5 be fruitful. In addition, Plaintiff alleged the same facts and claims for negligence and 6 assault against Nation’s Giant Burgers in a prior action that was dismissed for failure to 7 state a claim. See Murphy v. Nation's Giant Hamburgers, 2024 WL 267857, at *2 (E.D. 8 Cal. Jan. 24, 2024) (recommending dismissal for failure to state a claim and identifying 9 Plaintiff’s prior complaints that were dismissed for failure to state a claim or lack of 10 subject matter jurisdiction), report and recommendation adopted, 2024 WL 1019959 11 (E.D. Cal. Mar. 8, 2024). Although the Federal Rules adopt a flexible pleading policy, 12 even a pro se litigant’s complaint must give fair notice and state the elements of a claim 13 plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 14 1984). The Complaint therefore fails to state a claim on which relief may be granted and 15 is subject to dismissal. See McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996) 16 (affirming dismissal of complaint where “one cannot determine from the complaint who is 17 being sued, for what relief, and on what theory, with enough detail to guide discovery”). 18 C. Leave to Amend 19 In considering whether leave to amend should be granted, the Court finds that the 20 Complaint is without merit and consists entirely of allegations with no basis in law. See 21 generally Compl. The Complaint does not contain facts supporting any cognizable legal 22 claim against Defendants. In light of the Court’s lack of subject matter jurisdiction and the 23 Complaint’s deficiencies, granting leave to amend would be futile. The Court further 24 notes that Plaintiff has filed several complaints in this district court that were dismissed 25 for failure to state a claim and/or for lack of subject matter jurisdiction. See Murphy v 26 Nation’s Giant Burgers, No. 23-cv-0852-DJC-JDP (PS) (E.D. Cal. 2024) (dismissed for 27 failure to state a claim without leave to amend); Murphy v. First Republic Bank, N.A., No. 28 2:21-cv-00399-JAM-CKD (PS) (discussing plaintiff’s repeated failure to establish subject 1 | matter jurisdiction and satisfy the pleading standard); Murphy v. Federal Express Corp., 2 | No. 2:21-cv-00142-KJM-KJN (PS); Murphy v. Farmers Ins. Co., No. 2:20-cv-1456-KJM- 3 | DB (PS). The Complaint should therefore be dismissed without leave to amend. See 4 | Lopez, 203 F.3d at 1130-31; Cato v. United States, 70 F.3d 1103, 1105-06 (9th Cir. 5 | 1995). 6 | V. CONCLUSION 7 Based upon the findings above, it is RECOMMENDED that: 8 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) be DENIED; 9 2. Plaintiffs Complaint (ECF No. 1) be DISMISSED without leave to amend; 10 and 11 3. The Clerk of the Court be directed to CLOSE this case. 12 These findings and recommendations are submitted to the United States District 13 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 | 14 days after being served with these findings and recommendations, any party may file 15 | written objections with the Court and serve a copy on all parties. This document should 16 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 17 || reply to the objections shall be served on all parties and filed with the Court within 14 18 | days after service of the objections. Failure to file objections within the specified time 19 | may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 20 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 21 39 Dated: March 31, 2025 C i s 33 CHI SOO KIM

UNITED STATES MAGISTRATE JUDGE

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