(PS) Starr v. Ortega Gonzalez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBIN GILLEN STARR, No. 2:19-cv-02576-TLN-KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND DISMISSING WITH LEAVE TO AMEND 13 v. (ECF No. 2) 14 SOPHIA ORTEGA GONZALEZ, et al., 15 Defendants. 16 17 Plaintiff, who proceeds without counsel in this action, has requested leave to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) Plaintiff’s application in support of 19 his request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. 20 Accordingly, the court grants plaintiff’s request to proceed in forma pauperis. 21 The determination that a plaintiff may proceed in forma pauperis does not complete the 22 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any 23 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 24 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 25 an immune defendant. 26 A federal court has an independent duty to assess whether federal subject matter 27 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 28 636(b)(1). 1 jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. 2 Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty 3 to establish subject matter jurisdiction over the removed action sua sponte, whether the parties 4 raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). 5 The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject 6 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original 7 jurisdiction over a civil action when: (1) a federal question is presented in an action “arising 8 under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of 9 citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). 10 In this case, plaintiff’s complaint is handwritten and in parts is not legible. (See generally 11 ECF No. 1.) Plaintiff alleges that he was struck by defendant Sophia Gonzalez’s vehicle, which 12 resulted in plaintiff’s leg being amputated, along with other serious injuries. (Id. at 5.) Based on 13 the face of plaintiff’s complaint it is unclear how defendants Triple A Auto Insurance and 14 California State Auto Association are involved in this case, however, presumably they were the 15 insurance carriers for the parties. Plaintiff requests damages for medical bills, pain and suffering, 16 and loss of wages. (Id. at 3.) 17 Plaintiff asserts both diversity of citizenship and federal question as the bases for 18 jurisdiction. However, both of these rationales fail. 19 Regarding diversity jurisdiction, plaintiff’s complaint states that at least one defendant is a 20 California citizen (ECF No. 1-1.), which defeats diversity. See Johnson v. Columbia Properties 21 Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). 22 The thrust of plaintiff’s argument regarding federal question jurisdiction appears to be that 23 defendants violated his due process rights protected by the Fourteenth Amendment. (See ECF 24 No. 1.) However, due process claims generally do not lie against a private individual or business. 25 “The Fourteenth Amendment’s right to due process only protects discrimination that results from 26 state action.” Jackson v. Brown, 513 F.3d 1057, 1079 (9th Cir. 2008). Here, plaintiff has not 27 alleged, and does not appear to be able to allege, any state action that would implicate due process 28 protections. 1 To be clear, under 42 U.S.C. § 1983 the act of a private individual can amount to state 2 action under certain circumstances. See Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002) 3 (outlining four potential tests: (1) the public function test, (2) the joint action test, (3) the state 4 compulsion test, or (4) the governmental nexus test). However, plaintiff’s allegation of an 5 automobile accident between private citizens, which also implicates private businesses, does not 6 appear to fit within any of these exceptions. 7 Regarding plaintiff’s passing references to the First, Fourth, Fifth, and Eighth 8 Amendments of the Constitution as well as to sections of the Uniform Commercial Code, the 9 court can extract no cause of action in plaintiff’s complaint premised on these grounds. 10 Therefore, plaintiff’s complaint does not state a cognizable federal claim sufficient to 11 invoke the court’s federal question jurisdiction. Furthermore, the court does not have diversity 12 jurisdiction. Consequently, the court lacks federal subject matter jurisdiction over this action. 13 Accordingly, the court dismisses plaintiff’s complaint, but with leave to amend. If 14 plaintiff elects to file an amended complaint, it shall be clearly captioned “First Amended 15 Complaint” and shall cure the jurisdictional deficiencies identified above. Plaintiff is informed 16 that the court cannot refer to a prior complaint or other filing in order to make plaintiff’s first 17 amended complaint complete. Local Rule 220 requires that an amended complaint be complete 18 in itself without reference to any prior pleading. As a general rule, an amended complaint 19 supersedes the original complaint, and once the first amended complaint is filed, the original 20 complaint no longer serves any function in the case. 21 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 22 plaintiff concludes that he is unable to cure the federal jurisdictional deficiencies, he may instead 23 elect to file an action in state court. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 26 2. Plaintiff’s complaint is dismissed, but with leave to amend. 27 3. Within 28 days of the date of this order, plaintiff shall file a first amended complaint 28 in accordance with this order. Alternatively, if plaintiff no longer wishes to pursue 1 this action in federal court, plaintiff shall file a notice of voluntary dismissal of the 2 action without prejudice within 28 days of the date of this order. 3 4. Failure to file either a first amended complaint or a notice of voluntary dismissal 4 without prejudice by the required deadline may result in dismissal of the action with 5 prejudice pursuant to Federal Rule of Civil Procedure 41(b). 6 IT IS SO ORDERED. 7 | Dated: January 9, 2020 Fens Arn 9 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 10 starr.2576 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28