United States District Court, D. Utah
Nuffer District Court Judge
REPORT & RECOMMENDATION
B. Pead U.S. Magistrate Judge
October 26, 2017, the court granted Plaintiff James
Blume's (Plaintiff or Mr. Blume) application for leave to
proceed in forma pauperis and waived the prepayment
of filing fees pursuant to 28 U.S.C. §1915. (ECF No. 2.)
Shortly thereafter, Mr. Blume filed a motion seeking court
appointed counsel. (ECF No. 5.)
ruling dated December 6, 2017, this court dismissed Mr.
Blume's complaint for lack of jurisdiction and failure to
comply with Rule 8 of the Federal Rules of Civil Procedure.
(ECF No. 6.) The court, however, granted Plaintiff leave to
file an amended pleading addressing any deficiencies. On
December 29, 2017, Plaintiff filed what appears to be an
amended complaint and renewed his motion for appointment of
counsel. (ECF No. 7, ECF No. 8.) Upon review, Mr. Blume's
amended complaint fails to remedy the deficiencies of his
original pleading and therefore the court recommends
dismissal of the action.
The Complaint Under 28 U.S.C. §1915
court granted Mr. Blume leave to file his complaint pursuant
to 28 U.S.C. §1915, the in forma pauperis
statute. Under the statute a court must dismiss any claims
that are frivolous, malicious or fail to state a claim upon
which relief may be granted. 28 U.S.C. §1915(e)(2)(B).
In determining whether a complaint fails to state a claim for
relief under the statute, the court employs the standard used
for analyzing motions to dismiss for failure to state a claim
under rule 12(b)(6) of the Federal Rules of Civil Procedure.
Kay v. Bemis, 500 F.3d 1214, 1217-18
(10th Cir. 2007), Fed. R. Civ.12(b)(6). Review of
a motion to dismiss requires the court to “accept all
well-pleaded facts as true and view them in the light most
favorable to the plaintiff.” Jordan-Arapahoe, LLP
v. Bd. of County Comm'rs., 633 F.3d 1022, 1025
(10th Cir. 2011).
survive dismissal under 12(b)(6):
a complaint must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is plausible
on its face.” A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
Blume's complaint fails to state a claim for relief and
dismissal is appropriate under 28 U.S.C.
§1915(e)(2)(B)(ii). Despite an opportunity to amend,
Plaintiff's pleading remains unintelligible and in
violation of federal rule 8. Fed.R.Civ.P. 8(a)(2) (requiring
“a short and plain statement of the claim showing that
the pleader is entitled to relief.”). Mr. Blume fails
to assert clear causes of actions or provide discernable
factual allegations in support of any known claim. In turn,
Plaintiff does not establish jurisdiction. Penteco Corp.
Lt. P'ship---1985A v. Union Gas Sys. Inc., 929 F.2d
1519, 1521 (10th Cir. 1991) (a plaintiff has the
burden of establishing jurisdiction).
Blume appears, in part, to challenge an eviction order issued
by “a court system in Los Angeles.” (ECF No. 8 at
5.) Plaintiff, however, makes no connection between any of
the named parties and the State of Utah, and the Federal
District Court, District of Utah does not have jurisdiction
over a challenge to, or appeal of, a California federal court
ruling. See 28 U.S.C. §1291.
for the reasons set forth above and as addressed in this
court's earlier ruling, the undersigned Magistrate Judge
RECOMMENDS the District Judge dismiss Plaintiff's
complaint for ...