(PS) Kilpatrick v. WFRPSN, No. 2:2015cv02233 - Document 3 (E.D. Cal. 2015)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/6/15 RECOMMENDING that the action be dismissed without prejudice for lack of subject matter jurisdiction. Plaintiff's 2 motion to proceed in forma pau peris in this court be denied as moot. The Clerk be directed to close this case. It is ORDERED that all pleading, discovery, and motion practice in this action are stayed pending resolution of these findings and recommendations. Matter referred to Judge Garland E. Burrell, Jr.. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELSINA KILPATRICK, 12 Plaintiff, 13 14 No. 2:15-cv-2233-GEB-KJN PS v. ORDER AND WFRPSN, FINDINGS AND RECOMMENDATIONS 15 16 Defendant. 17 Plaintiff Elsina Kilpatrick, who proceeds in this action without counsel, has requested 18 19 leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Pursuant to 28 20 U.S.C. § 1915, the court is directed to dismiss the case at any time if it determines that the 21 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 22 which relief may be granted, or seeks monetary relief against an immune defendant. For the reasons discussed below, the court concludes that it lacks federal subject matter 23 24 jurisdiction over this action. As such, the court recommends that the action be dismissed without 25 prejudice, and that plaintiff’s application to proceed in forma pauperis in this court be denied as 26 moot. 27 28 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 A federal court has an independent duty to assess whether federal subject matter 2 jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. 3 Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty 4 to establish subject matter jurisdiction over the removed action sua sponte, whether the parties 5 raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). 6 The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject 7 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original 8 jurisdiction over a civil action when: (1) a federal question is presented in an action “arising 9 under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of 10 citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). 11 Here, plaintiff’s complaint alleges that defendant West Florin Representative Payee 12 Service & Nordhus, an entity that apparently disburses social benefits and other income for 13 individuals deemed incapable of managing their own resources, abused its power in managing 14 plaintiff’s funds by allowing plaintiff’s in-home support services (“IHSS”) worker to receive a 15 monthly check from plaintiff’s funds despite the IHSS worker already being paid by the State of 16 California. Plaintiff contends that she was taken advantage of, and that defendant’s actions 17 constituted fraud and violated “trust law.” It is unclear specifically what relief plaintiff seeks, 18 although it can be presumed that she seeks, at a minimum, recovery of any amounts alleged to 19 have been improperly paid to the IHSS worker. (See generally Complaint, ECF No. 1.) 20 Regardless of the merits of plaintiff’s claims, on which the court expresses no opinion, the 21 court plainly lacks subject matter jurisdiction over the action. There is no federal question 22 jurisdiction, because plaintiff’s complaint fails to assert any federal claims; nor does it appear 23 plausible that plaintiff could do so in this factual context. Additionally, because plaintiff and 24 defendant are both citizens of California, there is no diversity of citizenship jurisdiction. 25 Therefore, the court recommends that the action be dismissed for lack of subject matter 26 jurisdiction. However, such dismissal should be without prejudice, allowing plaintiff to pursue 27 any potential state law claims she may have in state court. The court expresses no opinion 28 regarding the merits of any such potential state law claims. 2 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. The action be dismissed without prejudice for lack of subject matter jurisdiction. 3 2. Plaintiff’s motion to proceed in forma pauperis in this court (ECF No. 2) be denied as 4 moot. 5 3. The Clerk of Court be directed to close this case. 6 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 7 discovery, and motion practice in this action are stayed pending resolution of these findings and 8 recommendations. Other than objections to the findings and recommendations or non-frivolous 9 motions for emergency relief, the court will not entertain or respond to any pleadings or other 10 filings until the findings and recommendations are resolved. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 13 days after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 shall be served on all parties and filed with the court within fourteen (14) days after service of the 17 objections. The parties are advised that failure to file objections within the specified time may 18 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 19 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 20 21 IT IS SO ORDERED AND RECOMMENDED. Dated: November 6, 2015 22 23 24 25 26 27 28 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.