Bivens v. Rudolph (Bivens) ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GINESHA BIVENS, No. 1:21-cv-1152 DAD-SAB 12 Plaintiff, 13 v. ORDER SUA SPONTE DISMISSING ACTION FOR LACK OF SUBJECT MATTER 14 LINDA RUDOLPH (BIVENS), JURISDICTION 15 Defendant. 16 17 On August 2, 2021, the court issued an order requiring plaintiff to show cause in writing 18 within seven days of the date of service as to why this action should not be dismissed due to lack 19 of subject matter jurisdiction. (Doc. No. 5.) In that order to show cause, the court noted that 20 plaintiff asserts in her complaint that this court has subject matter jurisdiction based on a federal 21 question pursuant to 28 U.S.C. § 1331, but plaintiff’s subject matter jurisdiction allegations 22 appeared to be facially deficient because no federal statute was cited or otherwise invoked. (See, 23 e.g., Doc. No. 1-1.) A copy of the court’s order was served by mail on plaintiff at her address of 24 record. To date, no response to the order has been filed by plaintiff, and the time to do so has 25 now passed. 26 As the court’s prior order outlined, “[f]ederal courts are courts of limited jurisdiction.” 27 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Federal subject matter 28 jurisdiction based on the presence of a federal question is governed by 28 U.S.C. § 1331 and 1 | requires a civil action to arise under the constitution, laws, or treaties of the United States.” □□□□□ 2 | v. Merlak, No. 1:19-cv-01585-DAD-GSA, 2021 WL 915214, at *2 (E.D. Cal. Mar. 10, 2021) 3 | (citing Ascarie v. Gavilan Coll., No. 16-cv-02493-BLF, 2017 WL 1436219, at *2 (N.D. Cal. Apr. 4 | 24, 2017).) Here, plaintiffs jurisdictional allegations are facially deficient because this condition 5 | isnot met. Thus, the court does not have subject matter jurisdiction over the pending action, and 6 || this case must be dismissed. Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it 7 | lacks subject-matter jurisdiction, the court must dismiss the action.”) This court’s order 8 | dismissing plaintiff's action does not foreclose the ability of plaintiff to seek relief in another 9 | court, such as a California state court, if she believes it to be appropriate to do so. 10 Accordingly: 11 1. This action is dismissed, without prejudice, due to lack of subject matter 12 jurisdiction; and 13 2. The Clerk of the Court is directed to close this case. 14 | IT IS SO ORDERED. a - Dated: _ August 18, 2021 J al, Al i 7 a 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28