Rod Serp v. City of Los Angeles ( 2023 )

CIVIL MINUTES – GENERAL Case No. 2:23-cv-08786-DDP (SK) Date: December 4, 2023 Title Rod Serp v. City of Los Angeles Present: The Honorable: Steve Kim, United States Magistrate Judge Connie Chung n/a Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiff: Attorneys Present for Defendant: None present None present Proceedings: (IN CHAMBERS) SCREENING ORDER1 Plaintiff Rod Serp seeks to pursue a federal suit nominally brought under 42 U.S.C. § 1983 against the City of Los Angeles. Because he is proceeding in forma pauperis, however, the court must screen his complaint to ensure it states a claim on which relief may be granted in federal court. See 28 U.S.C. § 1915(e)(2)(B). It does not. Plaintiff alleges that on November 19, 2019, Los Angeles Fire Department paramedics failed to properly treat his chest pain and refused to transport him to a hospital. (ECF 1 at 5, 7). But that allegation, even if true, amounts to no violation of an underlying federal right as needed to state a claim under § 1983. See Graham v. Connor, 490 U.S. 386, 393–94 (1989) (Section 1983 “is not itself a source of substantive rights.”). At most, plaintiff’s allegation of improper medical care by local emergency paramedics adds up to personal injury or negligence claims under state law. See, e.g., Cal. Health & Safety Code § 1799.106 (providing for civil damages suits against emergency medical personnel); Wright v. City of Los Angeles, 219 Cal. App. 3d 318, 345–46 (1990). The complaint here is thus subject to summary dismissal because it does not belong in federal court. See, e.g., Broussard v. Alfaro, 2017 WL 11635457, at *3–4 (C.D. Cal. Apr. 26, 2017) (dismissing § 1983 complaint alleging only underlying state law claims). 1 This order is non-dispositive, so it is not immediately appealable. See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); McKeever v. Block, 932 F.2d 795, 799 (9th Cir. 1991). If plaintiff believes this order is dispositive, he must object to the order within 14 days. See Fed. R. Civ. P. 72(a), (b); L.R. 72-2.1; Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 & n.1 (9th Cir. 1996). CIVIL MINUTES – GENERAL Case No. 2:23-cv-08786-DDP (SK) Date: December 4, 2023 Title Rod Serp v. City of Los Angeles For this reason, plaintiff is ORDERED TO SHOW CAUSE in writing by December 18, 2023 why this action should not be dismissed for failure to state a federal claim on which relief may be granted in federal court. Plaintiff may discharge this order by filing a Notice of Voluntary Dismissal without prejudice using the attached form CV-09x, which would permit him to refile his suit in state court as appropriate.2 If plaintiff files no timely notice of voluntary dismissal or other written response to this order, this action may be dismissed involuntarily for failure to prosecute and obey court orders. See Fed. R. Civ. P. 41(b); L.R. 41-1. IT IS SO ORDERED. 2 Nothing in this order is intended to suggest, however, that plaintiff’s state law claims are necessarily free of procedural defects, including (for example) timeliness under the applicable statute of limitations. See Cal. Code Civ. Proc. §§ 335.1, 340. Those are issues that a state court must decide in the first instance if plaintiff files suit there.