United States District Court, D. Nevada
C. W. HOFFMAN, Jr., Magistrate Judge.
This matter is before the Court on Plaintiff's Response (#7) and Third Motion/Application for Leave to Proceed In Forma Pauperis (#8), both filed on April 10, 2014.
On February 3, 2014, the Court denied without prejudice Plaintiff's First Motion/Application for Leave to Proceed In Forma Pauperis for lack of sufficient information and granted him 30 days to file a new application. See Order #1. Plaintiff submitted a Second Motion/Application to Proceed in Forma Pauperis (#3) on March 5, 2014. On March 6, 2014, the Court entered an Order denying without prejudice Plaintiff's Second Motion/Application to Proceed in Forma Pauperis (#3). The Court found several discrepancies in Plaintiff's Second Application. Plaintiff reported that he has monthly income of $10.00 in response to question 12, but listed no income in response to question 1. Plaintiff also attached his inmate banking history. However, Plaintiff failed to use the required form for a prisoner who is requesting in forma pauperis status. As a result of the discrepancies regarding Plaintiff's income and expenses, the Court found that there was insufficient information to determine whether Plaintiff is eligible to proceed in forma pauperis. Plaintiff was given until April 7, 2014 to file a completed Application to Proceed In Forma Pauperis or pay the filing fee. Plaintiff failed to submit a completed Application or pay the $400.00 filing fee by the April 7, 2014 deadline. Accordingly, the Court recommended that the action be dismissed on April 9, 2014. See Report and Recommendation #6. One day later, Plaintiff filed the instant Response (#7) and Third Motion/Application for Leave to Proceed In Forma Pauperis (#8).
I. In Forma Pauperis Application
The Court recommended that this action be dismissed on April 9, 2014 because Plaintiff failed to comply with Order #5 requiring him to file a new Motion/Application by April 7, 2014. In the interest of justice, the Court will vacate that Recommendation (#6) and review Plaintiff's Third Motion/Application (#8) although it was filed late. In Plaintiff's Third Application, he asserts that he is unemployed, receives inmate pay of $10.00 per month, money from family of $300, and pays child support of $50.00 per month. See Pla.'s Application #8, 1-2. Plaintiff is currently incarcerated, and states that his inmate account has a current account balance of $37.52, an average monthly balance of $173.14, and an average monthly deposit of $282.77. Id. at 4. Based on the financial information provided, the Court finds that Plaintiff is unable to pay an initial partial filing fee. Accordingly, Plaintiff's request to proceed in forma pauperis is granted pursuant to § 1915(a). However, even if this action is dismissed, the full filing fee of $400.00 must still be paid pursuant to 28 U.S.C. § 1915(b)(2), as amended by the Prison Litigation Reform Act of 1995. Plaintiff shall be required to make payments of 20% of the preceding month's deposits to the prisoner's account, in months that the account exceeds $10.00, until the full filing fee has been paid for this action. The Court will now review Plaintiff's Complaint.
II. Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint. Federal courts are given the authority dismiss a case if the action is legally "frivolous or malicious, " fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotations and citation omitted). When a court dismisses a complaint, the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. North Star Intern. v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). In considering whether the plaintiff has stated a claim upon which relief can be granted, all material allegations in the complaint are accepted as true and are to be construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
A. Federal Question Jurisdiction
As a general matter, federal courts are courts of limited jurisdiction and possess only that power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Pursuant to 28 U.S.C. § 1331, federal district courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." "A case arises under' federal law either where federal law creates the cause of action or where the vindication of a right under state law necessarily turn[s] on some construction of federal law.'" Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). The presence or absence of federal-question jurisdiction is governed by the "wellpleaded complaint rule." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the wellpleaded complaint rule, "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Id. Here, Plaintiff alleges marriage fraud, which is not a federal cause of action, and therefore, federal question jurisdiction does not exist.
B. Diversity Jurisdiction
Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil actions in diversity cases "where the matter in controversy exceeds the sum or value of $75, 000" and where the matter is between "citizens of different states." Plaintiff asserts damages of $98, 000 in his complaint. In addition, Plaintiff is a Colorado citizen and Defendant ...