(PS) Johnson v. Victoria Insurance Group et al, No. 2:2009cv00155 - Document 4 (E.D. Cal. 2009)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/14/09 ORDERING that Pltf's 3 request to proceed IFP is GRANTED. IT IS RECOMMENDED that this action be dismissed with prejudice for lack of subject matter jurisdiction. Objections due within 20 days. (Engbretson, K.)
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(PS) Johnson v. Victoria Insurance Group et al Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LAMONT JOHNSON, 11 Plaintiff, 12 No. CIV.S. 09-0155 LKK GGH PS vs. 13 VICTORIA INSURANCE GROUP, et al., 14 Defendants. 15 16 ORDER AND FINDINGS AND RECOMMENDATIONS _______________________________/ Plaintiff is proceeding in this action pro se. Plaintiff has requested authority 17 pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this 18 court by Local Rule 72-302(c)(21). 19 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is 20 unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in 21 forma pauperis will be granted. 28 U.S.C. § 1915(a). 22 Determining plaintiff may proceed in forma pauperis does not complete the 23 required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at 24 any time if it determines the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 26 an immune defendant. 1 Dockets.Justia.com 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 3 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989); Franklin, 745 F.2d at 1227. 8 A complaint must contain more than a “formulaic recitation of the elements of a 9 cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 10 speculative level.” Bell Atlantic Corp. v. Twombly,550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 11 “The pleading must contain something more...than...a statement of facts that merely creates a 12 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 13 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). In reviewing a complaint under this 14 standard, the court must accept as true the allegations of the complaint in question, Hospital 15 Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 16 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. 17 McKeithen, 395 U.S. 411, 421 (1969). 18 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 19 520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th 20 Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se 21 plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before 22 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. 23 Plaintiff alleges that defendant Bell caused plaintiff injuries when he slammed his 24 car into plaintiff’s car. The first cause of action is for negligence. The second cause of action is 25 that Bell committed mail and wire fraud under 18 U.S.C. §§ 1341 and 1343 when he 26 misrepresented to his insurance company that plaintiff caused the collision, and misrepresented 2 1 that there were no injuries or damages and that each party had decided to go his own way. 2 Plaintiff alleges that these false misrepresentations were part of Bell’s scheme to defraud plaintiff 3 from receiving damages for the collision. The third cause of action is for conspiracy by 4 defendant’s car insurance company, Victoria Insurance Group. Plaintiff alleges that this 5 defendant had a policy to delay and deny insurance claims, and force victims into settling for a 6 lower amount. The complaint seeks damages only. 7 The court has been unable to determine a jurisdictional basis for this action. A 8 federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by 9 the Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 10 114 S. Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1 provides that the judicial power of the 11 United States is vested in the Supreme Court, “and in such inferior Courts as the Congress may 12 from time to time ordain and establish.” Congress therefore confers jurisdiction upon federal 13 district courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 14 689, 697-99, 112 S. Ct. 2206, 2212 (1992). Lack of subject matter jurisdiction may be raised at 15 any time by either party or by the court. See Attorneys Trust v. Videotape Computer Products, 16 Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 17 The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal 18 question” and “diversity” jurisdiction, respectively. Statutes which regulate specific subject 19 matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J. 20 Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible 21 assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v. 22 Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1945). A federal claim which is so insubstantial as 23 to be patently without merit cannot serve as the basis for federal jurisdiction. See Hagans v. 24 Lavine, 415 U.S. 528, 587-38, 94 S. Ct. 1372, 1379-80 (1974). 25 26 The only reference to federal law in the complaint is the second cause of action, for mail and wire fraud. There is no private right of action for mail fraud under the criminal 3 1 federal wire fraud statute, 18 U.S.C. § 1341. Wilcox v. First Interstate Bank of Oregon, N.A., 2 815 F.2d 522, 532 n. 1 (9th Cir. 1987). Because the purported federal claims will have to be 3 dismissed, and plaintiff would be left with only state law claims, there is no federal jurisdiction. 4 The complaint is also not based on diversity jurisdiction. Because amendment 5 would not cure the jurisdictional defect based on the set of facts presented by plaintiff, plaintiff 6 will not be given the opportunity to amend his complaint. 7 8 9 10 11 Accordingly, IT IS ORDERED that plaintiff’s request to proceed in forma pauperis is granted. For the reasons stated herein, IT IS RECOMMENDED that this action be dismissed with prejudice for lack of subject matter jurisdiction. These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 13 twenty days after being served with these findings and recommendations, plaintiff may file 14 written objections with the court. The document should be captioned “Objections to Magistrate 15 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. 17 DATED: April 14, 2009 /s/ Gregory G. Hollows 18 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 GGH:076 Johnson0155.fr.wpd
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