1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JOHN A. SCOTT, Case No.: 22-CV-1955-GPC-AGS

11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MOTION TO PROCEED IN FORMA PAUPERIS; SUA SPONTE 13 VICKIE EMANUEL AND SHERYL DISMISSING COMPLAINT FOR TURCOTTE, 14 FAILURE TO STATE A CLAIM Defendants. AND FOR LACK OF SUBJECT 15 MATTER JURISDICTION; AND 16 DENYING MOTION TO APPOINT COUNSEL AS MOOT 17

18 [Dkt. Nos. 2, 3]

19 On December 9, 2022, Plaintiff John A. Scott, proceeding pro se, filed a complaint 20 against Defendants Vickie Emanuel and Sheryl Turcotte. (Dkt. No. 1, Compl.) Plaintiff 21 concurrently filed a motion to proceed in forma pauperis pursuant to

(a) 22 (“IFP”) and a motion to appoint counsel. (Dkt. Nos. 2-3.) For the reasons set forth 23 below, the Court DENIES Plaintiff’s motion to proceed IFP, sua sponte DISMISSES the 24 action for failure to state a claim pursuant to

(e)(2)(B)(ii), and for lack 25 of subject matter jurisdiction, and DENIES Plaintiff’s motion to appoint counsel as moot. 26 A. Motion to Proceed In Forma Pauperis 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $402.1 See

(a). An action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to § 1915(a). See 4 Andrews v. Cervantes,

(9th Cir. 2007); Rodriguez v. Cook,

(9th Cir. 1999). The plaintiff must submit an affidavit demonstrating his 6 inability to pay the filing fee, and the affidavit must include a complete statement of the 7 plaintiff’s assets.

(a)(1). “To satisfy the requirements of

1915, applicants must demonstrate that because of poverty, they cannot meet court costs 9 and still provide themselves, and any dependents, with the necessities of life.” Soldani v. 10 Comm'r of Soc. Sec., Case No.: 1:19-cv-00040 –JLT,

, at *1 (E.D. Cal. 11 Jan. 31, 2019). Courts may consider the federal poverty guidelines set by the United 12 States Department of Health and Human Services as well as income in the context of 13 overall expenses and other factors, including savings and debts, in ruling on IFP 14 applications. McKinley v. Cnty. of Fresno, No. 1:21-cv-00754-NONE-SAB,

3007162, at *1 (E.D. Cal. July 15, 2021). 16 Here, Plaintiff submitted a form application and declaration stating that his gross 17 wages are $9,367 per month. (Dkt. No. 2.) Plaintiff has $11.75 in cash and $23.24 in his 18 bank accounts. (Id. at 2.) Plaintiff owns a home valued at $523,847, and a vehicle 19 valued at $9,000. (Id. at 3.) He supports his estranged spouse with alimony. (Id.) He 20 has monthly living expenses of $10,801. (Id. at 4.) While Plaintiff’s expenses are higher 21 than his monthly income by $1,434, the Health and Human Services federal poverty 22 guideline for 2022 for 1 person/household is $13,590. See https://aspe.hhs.gov (last 23 visited Jan. 20, 2023). Plaintiff declares he makes about $9,167 - $9,367 per month 24 which equals to about $110,004 - $112,404/year, well above the federal poverty 25

26 1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of $52, in 27 addition to the $350 filing fee set by statute. See

(a) (Judicial Conference Schedule of 28 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not 1 guideline. Therefore, taking into consideration the federal poverty guidelines, his gross 2 monthly income and his expenses, the Court concludes that Plaintiff is able to pay the 3 filing fee due to his existing monthly income and the ability to adjust his expenses to pay 4 the filing fee. Accordingly, the Court DENIES Plaintiff’s motion for leave to proceed 5 IFP. 6 B. Sua Sponte Dismissal Pursuant to

(e)(2) 7 A complaint filed by any person proceeding IFP pursuant to

(a) is 8 subject to mandatory sua sponte review and dismissal by the Court if it is “frivolous, or 9 malicious; fails to state a claim upon which relief may be granted; or seeks monetary 10 relief against a defendant immune from such relief.”

(e)(2)(B); Calhoun 11 v. Stahl,

(9th Cir. 2001) (“[T]he provisions of

1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith,

, 1126-27 13 (9th Cir. 2000).

(e)(2) mandates that a court reviewing a complaint filed 14 pursuant to the IFP provisions of

rule on its own motion to dismiss 15 before directing that the complaint be served by the U.S. Marshal pursuant to Federal 16 Rule of Civil Procedure 4(c)(2). Lopez,

. 17 The requirements under

(e)(2)(B)(ii) are analogous to those under 18 Federal Rule of Civil Procedure 12(b)(6). Under Federal Rule of Civil Procedure 19 (hereinafter “Rule”) 8(a)(2), a pleading must contain “a short and plain statement of the 20 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a 21 plaintiff need not give “detailed factual allegations,” a plaintiff must plead sufficient facts 22 that, if true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. 23 Twombly,

(2007). To state a claim upon which relief may be granted 24 “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 25 relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting 26 Twombly,

). A claim is facially plausible when the factual allegations 27 permit “the court to draw the reasonable inference that the defendant is liable for the 28 misconduct alleged.”

1 Here, Plaintiff filed a civil complaint alleging a conspiracy claim under 18 U.S.C. 2 § 241, a criminal statute. This criminal statute does not support a private cause of action. 3 See Allen v. Gold Country Casino,

(9th Cir. 2006) (affirming 4 dismissal of claims brought under

and 242 “because these are criminal 5 statutes that do not give rise to civil liability.”) (citing Aldabe v. Aldabe,

, 6 1092 (9th Cir. 1980)). As such, the Court, sua sponte, DISMISSES the complaint for 7 failing to state a claim. 8 Moreover, “[f]ederal courts are courts of limited jurisdiction.” Kokkonen v. 9 Guardian Life Ins. Co. of Am.,

(1994). “It is to be presumed that a 10 cause lies outside this limited jurisdiction, and the burden of establishing the contrary 11 rests upon the party asserting jurisdiction.”

It is well-established that a federal court 12 cannot reach the merits of any dispute until it confirms that it retains subject matter 13 jurisdiction to adjudicate the issues presented. Steel Co. v. Citizens for a Better Environ., 14

(1988). 15 Federal subject matter jurisdiction may be based on (1) federal question 16 jurisdiction under

or (2) diversity jurisdiction under

. 17 The complaint must establish either that federal law creates the cause of action or that the 18 plaintiff’s right to relief necessarily depends on the resolution of substantial questions of 19 federal law. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for 20 Southern Cal.,

, 10–11 (1983). Alternatively, a federal court may have 21 diversity jurisdiction over an action involving citizens of different states where the 22 amount in controversy exceeds $75,000.

. “The essential elements of 23 diversity jurisdiction, including the diverse residence of all parties, must be affirmatively 24 alleged in the pleadings.” Bautista v. Pan Am. World Airlines, Inc.,

, 552 25 (9th Cir. 1987). 26 Here, because the Court has dismissed his claim arising under

for 27 failing to state a claim, Plaintiff does not assert a basis for the Court’s subject matter 28 jurisdiction; no federal question is alleged and no diversity of citizenship has been 1 || alleged or appears to exist. Accordingly, the Court also DISMISSES the complaint for 2 of subject matter jurisdiction. 3 ||C. Motion for Appointment of Counsel 4 The Constitution provides no right to appointment of counsel in a civil case unless 5 |} an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 6 || Dept. of Social Servs.,

(1981). Under

(e)(1), however, 7 || district courts are granted discretion to appoint counsel for indigent persons under 8 “exceptional circumstances.” Terrell v. Brewer,

(9th Cir. 1991). 9 || Here, because the Court SUA SPONTE dismisses Plaintiffs complaint for failure to state 10 claim upon which relief can be granted and for lack of federal subject matter 11 |/jurisdiction, the Court DENIES Plaintiff's request for appointment counsel as moot. 12 Conclusion 13 Based on the above, the Court DENIES Plaintiff's motion to proceed in forma 14 || pauperis, sua sponte DISMISSES the complaint for failure to state a claim and for lack of 15 || subject matter jurisdiction, and DENIES Plaintiff's motion for appointment of counsel as 16 moot. In the event Plaintiff seeks to file an amended complaint, he must do so no later 17 ||than March 1, 2023. Plaintiff must also pay the filing fee when he filed an amended 18 |/complaint. If Plaintiff does not file an amended complaint, the Court will dismiss the 19 || complaint with prejudice. 20 IT IS SO ORDERED. 21 Dated: January 24, 2023 (2. sake (0 22 Hon. Gonzalo P. Curtel 23 United States District Judge 24 25 26 27 28