United States District Court, D. Nevada
ORDER - AND - REPORT OF FINDINGS AND RECOMMENDATION
(IFP APP. - ECF NO. 1; MOTS. ECF NOS. 6-8)
A. LEEN UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Plaintiff Shaun Rosiere's
Application to Proceed In Forma Pauperis (ECF No. 4)
pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local
Rules of Practice. Also before the court are Rosiere's
Motion to Issue Summons (ECF No. 6), Motion for Status of
Case (ECF No. 7), and Second Motion for Status of Case (ECF
No. 8). The application and motions are referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B)
and LR IB 1-3 and 1-4 of the Local Rules of Practice.
In Forma Pauperis Application
Rosiere is proceeding in this action pro se, which
means that he is not represented by an attorney. See
LSR 2-1. He has requested authority pursuant to 28 U.S.C.
§ 1915 to proceed in forma pauperis
(“IFP”), meaning without prepaying the filing
fees, and submitted a proposed complaint. Pursuant to 28
U.S.C. § 1914(a) and the Judicial Conference Schedule of
Fees, a filing fee and administrative fee totaling $400 is
required to commence a civil action in a federal district
court. The court may authorize a person to commence an action
without the prepayment of fees and costs if the person files
an IFP application including an affidavit stating that he or
she is unable to pay the initial fees. See 28 U.S.C.
§ 1915(a)(1); LSR 1-1. However, the court must apply
“even-handed care” to ensure that “federal
funds are not squandered to underwrite, at public expense,
either frivolous claims” or the colorable claims of a
plaintiff “who is financially able, in whole or in
material part, to pull his own oar.” Temple v.
Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984)
(collecting cases). A “district court may deny leave to
proceed in forma pauperis at the outset if it appears from
the face of the proposed complaint that the action is
frivolous or without merit.” Minetti v. Port of
Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998); see
also Denton v. Hernandez, 504 U.S. 25, 31 (1992)
(recognizing Congress' concern that “a litigant
whose filing fees and court costs are assumed by the public,
unlike a paying litigant, lacks an economic incentive to
refrain from filing frivolous, malicious, or repetitive
explained in this order, the court finds that the District of
Nevada lacks subject matter jurisdiction over Mr.
Rosiere's Complaint (ECF No. 1-1), which is also
frivolous and duplicative. The court will therefore recommend
that the IFP Application be denied.
Screening the Complaint
to § 1915(e), federal courts must screen all IFP
complaints prior to a responsive pleading. Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)
(§ 1915(e) applies to “all in forma pauperis
complaints”). If the complaint states a valid claim for
relief, the court will then direct the Clerk of the Court to
issue summons to the defendant and the plaintiff must then
serve the summons and complaint within 90 days. See
Fed. R. Civ. P. 4(m). If the court determines that the
complaint fails to state an actionable claim, the complaint
is dismissed and the plaintiff is ordinarily given leave to
amend with directions as to curing the pleading deficiencies,
unless it is clear from the face of the complaint that the
deficiencies could not be cured by amendment. Cato,
70 F.3d at 1106. Allegations in a pro se complaint
are held to less stringent standards than formal pleading
drafted by lawyers. Erickson v. Pardus, 551 U.S. 89,
94 (2007). However, pro se litigants “should
not be treated more favorably than parties with attorneys of
record, ” Jacobsen v. Filler, 790 F.2d 1362,
1364 (9th Cir. 1986); rather, they must follow the same rules
of procedure that govern other litigants. Ghazali v.
Moran, 46 F.3d 52, 54 (9th Cir. 1995).
courts are required to dismiss an IFP action if the complaint
fails to state a claim upon which relief may be granted, is
legally “frivolous or malicious, ” or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). In determining whether a
complaint is frivolous and therefore warrants complete or
partial dismissal, a court is not bound “to accept
without question the truth of the plaintiff's
allegations.” Denton, 504 U.S. at 32.
Allegations are frivolous when they are “clearly
baseless” or lack an arguable basis in law and fact.
Id.; see also Neitzke v. Williams, 490 U.S.
319, 325 (1989). Frivolous claims include those based on
legal conclusions that are untenable (e.g., claims
against defendants who are immune from suit or claims of
infringement of a legal interest that clearly does not
exist), as well as claims based on fanciful factual
allegations (e.g., fantastic or delusional
scenarios). Neitzke, 490 U.S. at 327-28;
McKeever v. Block, 932 F.2d 795, 798 (9th Cir.
1991). A complaint lacks an arguable basis in law if
controlling legal authority requires a finding that the facts
alleged fail to establish a legal claim. Guti v. U.S.
Immigration & Naturalization Serv., 908 F.2d 495,
496 (9th Cir. 1990). The Ninth Circuit has repeatedly held
that a district court may dismiss as frivolous a complaint
“that merely repeats pending or previously litigated
claims.” Cato v. United States, 70 F.3d 1103,
1105 n.2 (9th Cir. 1995); Phillips v. Salt River Police
Dept., 586 F. App'x 381 (9th Cir. 2014).;
Martinez v. Bureau of Immigration & Customs
Enforcement, 316 F. App'x 640 (9th Cir. 2009).
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
A court's jurisdiction to resolve a case on its merits
requires a showing that the plaintiff has both subject matter
and personal jurisdiction. Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 577 (1999). “A federal court is
presumed to lack jurisdiction in a particular case unless the
contrary affirmatively appears.” Stock West,
Inc. v. Confederated Tribes of the Colville
Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
Rosiere's Factual Allegations and Claims for
Rosiere states that the sole purpose of his Complaint (ECF
No. 1-1) is to obtain a contract interpretation and
transcript interpretation regarding a plea agreement executed
in the District of New Jersey to resolve his federal criminal
charges. See United States v. Shaun Rosiere, Case
Nos. 1:08-cr-00629, 1:09-cr-00720 (D.N.J.). Attached to the
Complaint is a letter dated September 17, 2009, which sets
forth the plea agreement between Rosiere and the United
States Attorney for the District of New Jersey. Compl. (ECF
No. 1-1), Exhibit A at 4-10. He alleges there are nine
“contract issues” with the plea agreement which
require this court's interpretation. Also attached is a
partial transcript of the criminal proceedings on September
17, 2009, in which he entered a guilty plea. Id.,
Exhibit B at 11-15. He alleges three additional
“transcript issues” which require this
court's interpretation. The Complaint states that Mr.
Rosiere is not asking the court to overturn his federal
conviction; thus, this is not a habeas corpus action pursuant
to 28 U.S.C. § 2255. He further asserts that the
District of Nevada is the appropriate federal court to
resolve the disagreement because the terms of his federal
probation do not permit him to leave Nevada until November
reasons discussed below, the court finds that the District of
Nevada lacks subject matter jurisdiction over Mr.
Rosiere's Complaint, which is also frivolous and
duplicative. The court will therefore recommend dismissal of
Rosiere has filed several lawsuits in numerous federal courts
relating to his New Jersey criminal cases. Judicial notice is
properly taken of proceedings in other courts, both within
and without the federal judicial system, if those proceedings
have a direct relation to matters at issue. See,
e.g., McQuillion v. Schwarzenegger, 369 F.3d
1091, 1094 (9th Cir. 2004) (taking judicial notice of
district court proceedings to determine whether prior alleged
§ 1983 claims were dismissed pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994)). The court takes judicial
notice of the proceedings in Rosiere's criminal cases in
the District of New Jersey as well as the federal civil
actions he has filed across the country. Most of his recent