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Ellis v. Circle K Corp.
United States District Court, D. Arizona
July 5, 2018
Gregory Micheal Ellis, Plaintiff,
Circle K Corporation, et al., Defendants.
A. Teilborg Senior United States District Judge
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
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.
28, 2018, the Court issued the following Order:
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
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 ...
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