Opinion
Case No. 18-cv-02759 NC
08-07-2018
THOMAS HEATON SPITTERS, Plaintiff, v. GARY LOEBNER, Defendant.
REPORT AND RECOMMENDATION TO DISMISS CASE WITHOUT PREJUDICE; ORDER TO REASSIGN CASE TO A DISTRICT COURT JUDGE
Re: Dkt. Nos. 1, 2
On June 29, 2018, the Court denied plaintiff Thomas Heaton Spitters' application to proceed in forma pauperis without prejudice to refiling. Dkt. No. 8. The Court denied the motion because Spitters represented that his income and asserts were "de minimus," but that he provided money to family dependent on him for support. Id. at 1. As the Court noted, these statements are inconsistent. The Court ordered Spitters to refile the application and detail his financial situation accordingly. Id. at 1-2.
Spitters' response to the Court's denial of his application without prejudice was non-responsive. Spitters stated that he "does not recognize the language of the court in responding to plaintiff's motion to proceed, and insofar as the court is ruling 'without prejudice' in denying plaintiff's in pauperis application, the court did not recognize either plaintiff's petition to have defendant pay the costs of litigation including court's fees and attorney's fees." Dkt. No. 10 at 1. Moreover, Spitters stated that his "finances are considered highly and extremely confidential by plaintiff and should not be part of the public record simply as a declaration," and that "the court has placed undue weight in this filing on ethereal questions between plaintiff and finances, plaintiff and family as well, also private and confidential, that that should not be public." Id. at 1, 3.
Respectfully, the Court disagrees. Under 28 U.S.C. § 1915(a)(1), the Court may authorize the commencement of an action "without prepayment of fees" by a person who submits an affidavit of poverty, indicating that the affiant is "unable to pay such fees." However, here Spitters has not satisfied § 1915(a)(1) by his refusal to refile his in forma pauperis application. Spitters' apparent claim that the Court did not recognize that he requested that defendants pay his filing fee is incorrect in fact and law. Spitters would only be entitled to costs and attorneys' fees if he prevailed, and this would come in the form of a reimbursement. Defendants have not even been served. Moreover, Spitters' desire to not to reveal his financial circumstances is not well-taken. Spitters does not admit nor deny that he has the assets to pay the filing fee, instead hiding behind his claim that his finances are "confidential." This is not enough under § 1915(a)(1).
Moreover, Spitters did not file an amended complaint, instead filing a letter "response" to the Court's screening order. Dkt. No. 11. This letter did nothing to assuage the Court's concerns regarding the complaint's inadequacy under Rule 8(a) and 12(b)(6). Most importantly, Spitters did not, and has not addressed the jurisdictional question—he has not demonstrated that this Court has subject matter jurisdiction over this case.
Because the Court lacks the consent of either party under 28 U.S.C. § 636, the Court is unable to enter judgment in this case. Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017). The Court therefore ORDERS that this case be reassigned to a district court judge and RECOMMENDS that the district court judge dismiss this case without prejudice based on (1) the failure to file an amended in forma pauperis application, (2) the insufficiency of the complaint, and (3) the lack of subject matter jurisdiction. As to the first issue, the failure to file an amended in forma pauperis application, Spitters has the option of curing that defect by paying the $400 filing fee within 14 days of being served with this order. Moreover, the Court VACATES the case management conference currently scheduled for August 8, 2018.
Any party may object to this order, but must do so within 14 days of being served. Fed. R. Civ. P. 72(b).
IT IS SO ORDERED. Dated: August 7, 2018
/s/_________
NATHANAEL M. COUSINS
United States Magistrate Judge