United States District Court, D. Nevada
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 1915 Plaintiffs Victor Lyons and Roger
Scott are proceeding in this action pro se and have
requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis. Docket Nos. 1, 1-1.
Plaintiffs also submitted a complaint. Docket No. 1-2.
In Forma Pauperis Application
have submitted the affidavit required by § 1915(a).
Docket Nos. 1 (Plaintiff Roger Scott), 1-1 (Plaintiff Victor
Lyons). The Court concludes that Plaintiffs have shown an
inability to prepay fees and costs or give security for them.
Accordingly, the requests to proceed in forma
pauperis will be granted pursuant to 28 U.S.C. §
1915(a). The Clerk's Office is further
INSTRUCTED to file the complaint on the
docket, with all medical records of both Plaintiffs in the
exhibits to the complaint filed UNDER SEAL.
The Court will now review Plaintiffs' complaint.
granting an application to proceed in forma
pauperis, courts additionally screen the complaint
pursuant to § 1915(e). Federal courts are given the
authority to 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). When a court dismisses a complaint under
§ 1915, 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).
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. See Chappel v.
Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A
properly pled complaint must provide a short and plain
statement of the claim showing that the pleader is entitled
to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Although
Fed.R.Civ.Pro. 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). The court must accept
as true all well-pled factual allegations contained in the
complaint, but the same requirement does not apply to legal
conclusions. Iqbal, 556 U.S. at 679. Mere recitals
of the elements of a cause of action, supported only by
conclusory allegations, do not suffice. Id. at 678.
Secondly, where the claims in the complaint have not crossed
the line from conceivable to plausible, the complaint should
be dismissed. Twombly, 550 U.S. at 570. Allegations
of a pro se complaint are held to less stringent
standards than formal pleadings drafted by lawyers. Hebbe
v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010)
(finding that liberal construction of pro se
pleadings is required after Twombly and
Iqbal). Plaintiffs' complaint suffers from
Federal Court Jurisdiction
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).
“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). As Plaintiff is the party who invokes the
court's jurisdiction, Plaintiff bears the burden of
proving that the case is properly in federal court.
McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th
Cir. 2001) (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)).
fail to allege federal court jurisdiction, apart from bald
statements about “federal questions.”
See Docket No. 1-2. Although Plaintiffs have named
the United States as a defendant, “[t]he United States,
as sovereign, is immune from suit save as it consents to be
sued ..., and the terms of its consent to be sued in any
court define that court's jurisdiction to entertain
suit.” United States v. Sherwood, 312 U.S.
584, 586 (1941). “Its consent to be sued must be
‘unequivocally expressed, ' and the terms of such
consent define the court's subject matter
jurisdiction.” White-Squire v. U.S. Postal
Serv., 592 F.3d 453, 456 (3d Cir.2010)(quoting
United States v. Mitchell, 445 U.S. 535, 538
have failed to demonstrate that the United States has waived
its sovereign immunity. The Court cannot determine, from the
original complaint, whether the United States has waived
sovereign immunity and consented to suit. Accordingly,
Plaintiffs have not borne their burden of demonstrating that
this Court has jurisdiction over the instant case.
attempt to file their complaint as a class action, with
Plaintiffs representing the class pro se. Docket No.
1-2. Plaintiffs cannot, however, proceed with a class action
as pro se litigants. See Langan v. United
Services Auto. Assoc., 69 F.Supp.3d 965, 988-89 (N.D.
Cal. 2014), see also Simon v. Hartford Life, Inc.,
546 F.3d 661, 664 (9th Cir. 2008) (collecting cases).
Plaintiffs seek to avoid that fate by arguing that they are
entitled to appointment of counsel under Rule 23 of the
Federal Rules of Civil Procedure. See, e.g., Docket
No. 1-2 at 5. Plaintiffs misunderstand that rule, which
provides that once the Court has determined that a case may
proceed as a class action then it also orders that one of the
attorneys already appearing in the case as a representative
of a named plaintiff is appointed to also represent the
entire class. See, e.g., Olmos v. Ryan,
2012 WL 1580555, at *3 (D. Ariz. May 4, 2012). Rule 23 does
not mandate appointment of counsel for pro
se litigants seeking to bring class actions.
See, e.g., id. Hence, Plaintiffs are not
entitled to appointment of counsel, and they cannot bring
their case as a class action.