(PS) Tanksley v. Debbie ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MOODY WOODROW TANKSLEY, No. 2:20-cv-01875-JAM-KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND DISMISSING WITH LEAVE TO AMEND 13 v. (ECF No. 2) 14 DEBBIE, et al., 15 Defendant. 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 hand-written and difficult to understand at points. 11 (See ECF No. 1.) Generally, it appears that plaintiff alleges that he went to a private health care 12 facility, was refused medical treatment, and suffered $10 million in damages as a result. (Id. at 5- 13 6.) Plaintiff asserts federal question as the basis of jurisdiction and cites to 42 U.S.C. § 1983 for 14 the statutory basis for that jurisdiction. (Id. at 1.) 15 Although plaintiff asserts a federal claim under 42 U.S.C. § 1983, such a claim generally 16 does not lie against a private individual or business entity that does not act under color of state 17 law. See Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002). To be sure, a private individual’s 18 action can amount to state action under certain circumstances. See Franklin, 312 F.3d at 445 19 (outlining four potential tests: (1) the public function test, (2) the joint action test, (3) the state 20 compulsion test, or (4) the governmental nexus test). However, plaintiff does not attempt to 21 invoke any of these tests, and from the face of the complaint it does not appear that any apply. 22 Therefore, plaintiff’s complaint does not state a cognizable federal claim sufficient to invoke the 23 court’s federal question jurisdiction. Furthermore, there is no diversity of citizenship jurisdiction, 24 because plaintiff and defendants are all citizens of California. Consequently, the court lacks 25 federal subject matter jurisdiction over this action. 26 Accordingly, the court dismisses plaintiff’s complaint, but with leave to amend. If 27 plaintiff elects to file an amended complaint, it shall be clearly captioned “First Amended 28 Complaint” and shall cure the jurisdictional deficiencies identified above. Plaintiff is informed wASe 2 OU UV □□ VEAINTTING IN RAVI PO eter OY VI 1 | that the court cannot refer to a prior complaint or other filing in order to make plaintiff’s first 2 | amended complaint complete. Local Rule 220 requires that an amended complaint be complete 3 | in itself without reference to any prior pleading. As a general rule, an amended complaint 4 | supersedes the original complaint, and once the first amended complaint is filed, the original 5 | complaint no longer serves any function in the case. 6 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 7 | plaintiff concludes that he is unable to cure such federal jurisdictional deficiencies, he may 8 || instead elect to file an action in state court. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiffs motion to proceed in forma pauperis (ECF No. 2) is granted. 11 2. Plaintiff’s complaint is dismissed, but with leave to amend. 12 3. Within 28 days of the date of this order, plaintiff shall file a first amended complaint 13 in accordance with this order. Alternatively, if plaintiff no longer wishes to pursue 14 this action in federal court, plaintiff shall file a notice of voluntary dismissal of the 15 action without prejudice within 28 days of the date of this order. 16 4. Failure to file either a first amended complaint or a notice of voluntary dismissal 17 without prejudice by the required deadline may result in dismissal of the action with 18 prejudice pursuant to Federal Rule of Civil Procedure 41(b). 19 | Dated: September 29, 2020 Aectl Aharon 2] KENDALL J. NE 1875.ifp lta UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28