Armbrust v. San Diego Humane Society

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SEAN ARMBRUST, Case No.: 22-CV-623 JLS (JLB) 12 Plaintiff, ORDER: (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, 14 SAN DIEGO HUMANE SOCIETY, AND (2) DISMISSING WITHOUT 15 Defendant. PREJUDICE PLAINTIFF’S COMPLAINT [16] 17 (ECF Nos. 1, 2) [18] 19 Presently before the Court are Plaintiff Sean Armbrust’s Complaint (“Compl.,” ECF 20 No. 1) and Application to Proceed in District Court Without Prepaying Fees or Costs (“IFP 21 Mot.,” ECF No. 2). Having carefully considered Plaintiff’s Complaint, his IFP Motion, 22 and the applicable law, the Court GRANTS Plaintiff’s IFP Motion and DISMISSES 23 WITHOUT PREJUDICE Plaintiff’s Complaint for the reasons that follow. 24 IN FORMA PAUPERIS MOTION 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 / / / 28 / / / 1 $402. See 28 U.S.C. § 1914 (a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915 (a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 4 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does 5 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege 6 poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). 7 Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit 8 demonstrates that paying court costs will result in a plaintiff’s inability to afford the 9 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is 10 destitute. Id. 11 Here, Plaintiff’s affidavit shows that he has no income or present employer. See IFP 12 Mot. at 1–2. Plaintiff reportedly owns no assets or cash, see id. at 2–3, and is responsible 13 for the care of his ten-year-old son, see id. at 3. Plaintiff’s monthly expenses are 14 approximately $110.00, including $10.00 for laundry and dry-cleaning and $100.00 for 15 transportation. See id. at 4–5. Plaintiff does not anticipate any major changes to his 16 monthly income, expenses, assets, or liabilities in the coming year, although he is looking 17 for work. Id. at 5. 18 The Court concludes that Plaintiff adequately has demonstrated that paying the $402 19 filing fee would result in his inability to afford the necessities of life. Accordingly, the 20 Court GRANTS Plaintiff’s IFP Motion. 21 SCREENING PURSUANT TO 28 U.S.C. § 1915 (e)(2) 22 I. Standard of Review 23 Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening 24 pursuant to 28 U.S.C. § 1915 (e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. [27] See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 28 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to 1 Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915 (e)(2) screening applies to non-prisoners 2 proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 2000) (en banc) 3 (discussing 28 U.S.C. § 1915 (e)(2)). Under this statute, the Court sua sponte must dismiss 4 a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks 5 damages from immune defendants. See Lopez, 203 F.3d at 1126–27. “The purpose of 6 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 7 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) 8 (citations omitted). 9 “The standard for determining whether a plaintiff has failed to state a claim upon 10 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 11 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 12 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 13 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 14 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 15 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the 16 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 17 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 18 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 19 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 20 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 21 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 22 “When a court does not have jurisdiction to hear an action, the claim is considered 23 frivolous.” Johnson v. E. Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989). 24 Moreover, “[t]he Court has an independent obligation to determine whether it has subject25 matter jurisdiction.” Cox v. Lee, No. CV-20-0275-PHX-DMF, 2020 WL 1904625 , at *2 26 (D. Ariz. Apr. 17, 2020) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 , 583 27 (1999)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) 28 (“[F]ederal courts have an independent obligation to ensure that they do not exceed the 1 scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions 2 that the parties either overlook or elect not to press.”) (citation omitted). Pursuant to 3 Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks 4 subject-matter jurisdiction, the court must dismiss the action” (emphasis added). As the 5 plain language of Rule 12(h)(3) suggests, this requirement is mandatory. See Arbaugh v. 6 Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “‘subject-matter jurisdiction, because it 7 involves a court’s power to hear a case, can never be forfeited or waived”; therefore, “when 8 a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss 9 the complaint in its entirety”) (citation omitted). 10 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim11 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 12 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 13 unless the court determines that “the pleading could not possibly be cured by the allegation 14 of other facts.” Lopez, 203 F.3d at 1130–31 (citing Doe v. United States, 58 F.3d 494 , 497 15 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). 16 II. Plaintiff’s Allegations 17 Plaintiff was the owner of “[American Kennel Club] & [United Kennel Club] Dogs 18 & other Animals” purchased “from Dog Breeders & other Pet Store” that “[we]re [his] 19 family.” Compl. at 4. Plaintiff alleges that on December 5, 2021, Defendant San Diego 20 Humane Society (“SDHS”) took possession of his animals for emergency boarding when 21 Plaintiff was arrested. Id. When Plaintiff was released on December 14, 2021, he 22 contacted SDHS and “was told to come pick-up [his] animals.” Id. However, “upon 23 arrival,” he “was given a seizure of property notice.” Id. It appears Plaintiff has lodged 24 complaints with the District Attorney of the County of San Diego against both SDHS and 25 the El Cajon Police Department premised on the incident. See ECF No. 1-2 at 1–2. 26 On May 3, 2022, Plaintiff filed his Complaint using a form “Complaint for the 27 Conversion of Property ( 28 U.S.C. § 1332 ; Diversity of Citizenship). See generally Compl. 28 Plaintiff, a citizen of the State of California, see id. at 3 , states his sole claim for conversion 1 against SDHS, which he alleges is incorporated under the laws of the State of California 2 with its principal place of business in California, see id. Plaintiff seeks damages in the 3 amount of $6,000,000.00, given that SDHS “infringed unjustly on [his] Dog Breeding 4 Program & cut[ his] future income stream.” Id. at 4 . He also seeks the return of his animals 5 and compensation for his emotional distress. Id. at 5 . 6 III. Analysis 7 Based on the facts alleged, the Court is not satisfied that it has subject-matter 8 jurisdiction over Plaintiff’s claim. “Federal district courts are courts of limited jurisdiction 9 that ‘may not grant relief absent a constitutional or valid statutory grant of jurisdiction’ and 10 are ‘presumed to lack jurisdiction in a particular case unless the contrary affirmatively 11 appears.’” Cooper v. Tokyo Elec. Power Co., 990 F. Supp. 2d 1035, 1038 (S.D. Cal. 2013) 12 (quoting A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003)). 13 Plaintiff alleges diversity jurisdiction, see Compl. at 1; see also ECF No. 1-1 at VI, 14 pursuant to which courts have jurisdiction when the “matter in controversy exceeds . . . 15 $75,000 . . . and is between . . . [¶] citizens of different States,” 28 U.S.C. § 1332 (a)(1). 16 However, Plaintiff alleges that both he and SDHS are citizens of the State of California. 17 See Compl. at 3. Accordingly, Plaintiff fails to adequately allege complete diversity of 18 citizenship. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (explaining that 28 19 U.S.C. § 1332 (a) requires “complete diversity,” and “thus applies only to cases in which 20 the citizenship of each plaintiff is diverse from the citizenship of each defendant”).2 21 In light of the foregoing, the Court finds that it lacks subject-matter jurisdiction over 22 Plaintiff’s Complaint. Thus, dismissal is warranted pursuant to 28 U.S.C. § 1915 (e)(2). 23 / / / 24 / / / 25 / / / [26] 27 2 The Court notes that, in his Civil Cover Sheet, Plaintiff also indicates that his suit is against a United 28 States government defendant. See ECF No. 1-1. However, Plaintiff’s Complaint contains no allegations 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS Plaintiffs IFP Motion and 3 DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint pursuant to 28 U.S.C. 4 1915(e)(2) for lack of federal subject-matter jurisdiction. 5 Plaintiff MAY FILE an amended complaint curing the jurisdictional deficiency 6 ||noted above on or before July 1, 2022. Any amended filing must be complete in itself, 7 || without reference to Plaintiff's original Complaint. Any claim not re-alleged in Plaintiffs 8 |}amended complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 9 || Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 10 ||amended pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693 F.3d 11 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 12 || realleged in an amended pleading may be “considered waived”). 13 Should Plaintiff fail to file an amended complaint on or before July 1, 2022, the 14 || Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure 15 || to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915 (e)(2) ana 16 || his failure to prosecute in compliance with a court order requiring amendment. See Lira 17 || v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 18 ||the opportunity to fix his complaint, a district court may convert the dismissal of the 19 complaint into dismissal of the entire action.”). Such dismissal would be without prejudice 20 || to Plaintiff refiling his claim in state court. 21 IT IS SO ORDERED. 22 || Dated: May 16, 2022 jae L. Lo memeaite23 on. Janis L. Sammartino 54 United States District Judge