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Ellis v. Circle K Corp.

United States District Court, D. Arizona

June 28, 2018

Gregory Micheal Ellis, Plaintiff,
v.
Circle K Corporation, et al., Defendants.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

         On June 14, 2018, the Court issued the following Order:

Pending before the Court is Plaintiff's application to proceed in forma pauperis. “Inquiring whether the court has jurisdiction is a federal judge's first duty in every case.” Belleville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003). In this case, Plaintiff's “complaint” is actually two separate complaints run together as a single document. (Doc. 1).
In complaint 1, Plaintiff alleges jurisdiction based on diversity. (Doc. 1 at 3). However, Plaintiff fails to plead the citizenship of any party. See generally Caterpillar v. Lewis, 386 U.S. 523, 531 (1996). Further, the address listed for every party is in Arizona.
In complaint 2, Plaintiff alleges federal question jurisdiction. In this complaint, Plaintiff leaves blank all sections on federal question jurisdiction. (Doc. 1 at 8). On this record, Plaintiff has failed to allege federal question jurisdiction.
Based on the foregoing, Plaintiff has failed to allege or establish federal subject matter jurisdiction. Therefore,
IT IS ORDERED that by June 28, 2018, Plaintiff shall file an amended (single) complaint properly alleging federal subject matter jurisdiction or this case will be dismissed, without prejudice.

(Doc. 9).

         On June 15, 2018, Plaintiff filed a single amended complaint. In this amended complaint, Plaintiff alleges jurisdiction based on federal question, specifically “United States Code Title 42, Chapter 21[.]” (Doc. 10 at 3). Under Plaintiff's statement of claim he states, (quoted in its entirety) “Racial Discrimination, Defamation of Character, Harassment, and Denial of Public Services due to Race.” (Doc. 10 at 4). Plaintiff also made a demand of “Five Million Dollars”. (Doc. 10 at 4). The Court has quoted all of Plaintiff's allegations in his amended complaint.

         As the Court noted in its prior Order, Plaintiff seeks to proceed in forma pauperis.

         A. 28 U.S.C. § 1915(e)(2)

         Congress provided with respect to in forma pauperis cases that a district court "shall dismiss the case at any time if the court determines" that the "allegation of poverty is untrue" or that the "action or appeal" is "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). While much of section 1915 outlines how prisoners can file proceedings in forma pauperis, section 1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)("section 1915(e) applies to all in forma pauperis complaints"). "It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim." Id. Therefore, this court must dismiss an in forma pauperis complaint if it fails to state a claim or if it is frivolous or malicious.

         "[A] complaint, containing both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Furthermore, "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or wholly incredible, whether or not there are judicially recognized facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). "A case is malicious if it was filed with the intention or desire to harm another." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

         B. Rule 8, Federal Rules ...


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