Opinion
No. CIV. S-05-0251 LKK DAD PS.
October 31, 2005
FINDINGS AND RECOMMENDATIONS
Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302(21), pursuant to 28 U.S.C. § 636(b)(1).
By order filed October 5, 2005, plaintiff was directed to show cause in writing why this case should not be dismissed for lack of subject matter jurisdiction. Plaintiff has timely responded to that order. However, plaintiff's response only confirms the court's initial determination that this action concerns claims related to a trespass dispute between plaintiff and her neighbor, claims that are properly pursued in state court.
Specifically, in her response to the order to show cause plaintiff explains that she is pursuing this action because her neighbor has trespassed onto her property, stolen her poultry and otherwise harassed her using a certain trail, with respect to which plaintiff has an easement, to carry out many of these acts.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.").
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).