Case No. C03-0018Z
January 16, 2003
REPORT AND RECOMMENDATION
Pro se plaintiff Rikki Leeson has submitted an in forma pauperis application and a Complaint. Plaintiff seeks to vacate a January 18, 2001, state court order of eviction obtained by the Housing Authority of the City of Seattle on the ground the order was issued based upon perjured testimony.
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court may deny an application to proceed in forma pauperis and should dismiss an action if the Complaint fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff cites a plethora of federal and state statutes, in addition to Rule 60 of the Federal Rules of Civil Procedure, as the basis for his claims. The factual allegations in this Complaint, however, neither implicate the Constitution, laws or treaties of the United States, nor satisfy the diversity of citizenship and amount in controversy requirements. See 28 U.S.C. § 1331 1332. Plaintiff's reliance upon Rule 60 of the Federal Rules of Civil Procedure is similarly misplaced as the judgment/order from which he seeks relief was not entered by this court.
This action is therefore subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure 12(b)(1), (6) as plaintiff has not alleged a coherent basis for federal subject matter jurisdiction. See Fed.R.Civ.P. 8(a)(1).
In light of the foregoing, plaintiff's in forma pauperis application should be denied and this action dismissed without prejudice. See 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring sua sponte dismissal); Wong v. Bell, 642 F.2d 359 (9th Cir. 1981) (permitting sua sponte dismissal). A proposed Order of Dismissal accompanies this Report and Recommendation.
ORDER OF DISMISSAL
The court, having reviewed the entire record in this matter, including plaintiff's in forma pauperis application and Complaint, and the Report and Recommendation of the Hon. John L. Weinberg, United States Magistrate Judge, and any objections or responses to that, finds and ORDERS as follows:
(1) The court adopts the Report and Recommendation. Plaintiff's in forma pauperis application is DENIED, and this action is DISMISSED without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure 12(b)(1), (6), and
(2) The Clerk shall close this case, and shall send a copy of this order to plaintiff and to the Hon John L. Weinberg.