Alfaro v. Alfaro

• Court: U.S. District Court — Eastern District of California
• Writing for the Court: Gregory G. Hollows
• Decision Date: 11 September 2012
• Docket Number: No. 2:12-cv-2023 LKK GGH PS
• Citation: Alfaro v. Alfaro, No. 2:12-cv-2023 LKK GGH PS (E.D. Cal. Sep 11, 2012)
• Parties: MIKA C. ALFARO, Plaintiff, v. JUANITA ALFARO, Defendant.

MIKA C. ALFARO, Plaintiff,

v.JUANITA ALFARO, Defendant.

No. 2:12-cv-2023 LKK GGH PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: September 11, 2012

FINDINGS AND RECOMMENDATIONS

Plaintiff is proceeding pro se and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has filed an in forma pauperis affidavit in which she states that her monthly take home income is $5,400. The affidavit also states that plaintiff has $250,000 in a checking or savings account. Pursuant to federal statute, a filing fee of $350.00 is required to commence a civil action in federal district court. 28 U.S.C. § 1914(a). The court may authorize the commencement of an action "without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor." 28 U.S.C. § 1915(a). The amount of plaintiff's income shows that plaintiff is able to pay the filing fee and costs. Thus, plaintiff has made an inadequate showing of indigency. See Alexander v. Carson Adult High Sch., 9 F.3d 1448 (9th Cir. 1993); California Men's Colony v.Rowland, 939 F.2d 854, 858 (9th Cir. 1991) rev'd on other grounds, Rowland v. California Men's Colony, 506 U.S. 194, 113 S. Ct. 716 (1993); United States v. McQuade, 647 F.2d 938, 1940 (9th Cir. 1981) (per curiam); Stehouwer v. Hennessey, 841 F. Supp. 316, (N.D. Cal. 1994), aff'd in part, vacated in part, sub. nom. Olivares v. Marshal, 59 F.3d 109 (9th Cir. 1995). Accordingly, plaintiff's application should be denied.

The complaint alleges that plaintiff's aunt, defendant Juanita Alfaro, tried to run plaintiff's son over and beat up three or four of plaintiff's children. Juanita is also accused of breaking into plaintiff's daughter's house. Plaintiff reports a number of other family squabbles, including that defendant asks plaintiff for money but then will not help plaintiff, and that she and her neighbors drink and loiter near plaintiff's daughter's apartment.

The court is unable to determine a jurisdictional basis for this action. A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S. Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1 provides that the judicial power of the United States is vested in the Supreme Court, "and in such inferior Courts as the Congress may from time to time ordain and establish." Congress therefore confers jurisdiction upon federal district courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697-99, 112 S. Ct. 2206, 2212 (1992). Lack of subject matter jurisdiction may be raised at any time by either party or by the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer "federal question" and "diversity" jurisdiction, respectively. Statutes which regulate specific subject matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1945). A federal claim which is so insubstantial asto be patently without merit cannot serve as the basis for federal jurisdiction. See Hagans v. Lavine, 415 U.S. 528, 537-38, 94 S. Ct. 1372, 1379-80 (1974).

For diversity jurisdiction pursuant to 28 U.S.C. § 1332, each plaintiff must be diverse from each defendant, and the amount in controversy must exceed $75,000. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, section 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).

Finally, plaintiff's standing to bring this action is doubtful.

The complaint makes no reference to federal law and does not assert diversity jurisdiction. Both parties are residents of California. Battery and theft are state law criminal matters. Accordingly, the complaint must be dismissed.

Although the court would ordinarily grant a pro se plaintiff leave to amend, these facts demonstrate that plaintiff could not amend to demonstrate subject matter jurisdiction. Accordingly, leave to amend would be futile and the action should be dismissed with prejudice.

In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Plaintiff's application to proceed in forma pauperis, filed August 1, 2012, be denied; and

2. This action...