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 TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED FOR 14 LINDA RUDOLPH (BIVENS), LACK OF SUBJECT MATTER JURISDICTION 15 Defendant. (Doc. No. 1) 16 17 18 On July 30, 2021, plaintiff, proceeding pro se, filed a complaint initiating this action, as 19 well as an application to proceed in forma pauperis and a motion for a temporary restraining 20 order. (Doc. Nos. 1, 2, 4.) The court has reviewed plaintiff’s complaint in conjunction with its 21 review of her motion for a temporary restraining order. Plaintiff asserts that this court has subject 22 matter jurisdiction over her claims based on a federal question; however, in support of this 23 assertion she cites only 28 U.S.C. § 1367.1 (Doc. No. 1-1.) 24 Plaintiff’s subject matter jurisdiction allegations in her complaint are facially deficient 25 because plaintiff’s complaint appears to assert only state law claims based on defendant’s alleged 26 1 Title 29 § 1367 provides for supplemental jurisdiction over state law claims where claims under 27 federal law are also alleged, and this court cannot exercise supplemental jurisdiction over plaintiff’s state law claims if plaintiff fails to first state a cognizable claim for relief under federal 28 law. 1 decision to prevent plaintiff from visiting her father, who is said to be surviving precariously on 2 continued artificial revivification methods at Kaweah Delta Medical Center in Visalia, 3 California.2 (See id.; Doc. No. 1 at 4.) 4 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of 5 Am., 511 U.S. 375, 377 (1994). “[S]ubject matter jurisdiction of the district court is not a 6 waivable matter and may be raised at anytime by one of the parties, by motion or in the 7 responsive pleadings, or sua sponte by the trial or reviewing court.” Emrich v. Touche Ross & 8 Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988); see also Henderson ex rel. Henderson v. Shinseki, 9 562 U.S. 428, 434–35 (2011) (noting objections to subject matter jurisdiction may be raised post- 10 trial). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of 11 establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377 12 (internal citation omitted). “Federal subject matter jurisdiction based on the presence of a federal 13 question is governed by 28 U.S.C. § 1331 and requires a civil action to arise under the 14 constitution, laws, or treaties of the United States.” Ioane v. Merlak, No. 1:19-cv-01585-DAD- 15 GSA, 2021 WL 915214, at *2 (E.D. Cal. Mar. 10, 2021) (citing Ascarie v. Gavilan Coll., No. 16- 16 cv-02493-BLF, 2017 WL 1436219, at *2 (N.D. Cal. Apr. 24, 2017).) 17 Due to the apparent deficiencies in plaintiff’s jurisdictional allegations, plaintiff is ordered 18 to show cause within seven (7) days of the date of service of this order as to why this case should 19 not be dismissed for lack of subject matter jurisdiction. Plaintiff may discharge this order to show 20 cause by identifying a statutory basis for this court’s exercise of jurisdiction and identifying the 21 factual allegations in the complaint that support federal court jurisdiction. Depending on the 22 amount of damages sought, this court may have diversity jurisdiction under 28 U.S.C. § 1332, but 23 plaintiff does not assert that as the basis for jurisdiction over this action and it is unclear whether 24 diversity jurisdiction over this action could be applicable based upon the allegations of plaintiff’s 25 2 The court further notes that plaintiff does not appear to allege a cognizable cause of action 26 even under California law. The civil cover sheet in this action lists her claims as brought 27 pursuant to California Welfare and Institutions Code §§ 15600–15766, however, those provisions of California law pertain to the abuse of the elderly or dependent adults and on their face to not 28 appear to applicable to plaintiffs’ allegations set forth in her complaint. 1 | complaint. Federal courts have jurisdiction on the basis of diversity of citizenship, under 28 2 | U.S.C. § 1332, if the matter is between citizens of different states or nations and the amount in 3 | controversy exceeds $75,000. Plaintiff is therefore directed to file a document with this court 4 | stating: (1) whether she brings a claim arising from the constitution, any laws, or treaties of the 5 | United States and to identify the specific federal basis for her claims; (2) whether she is alleging 6 | total diversity of citizenship; and (3) if so, to identify the amount in controversy of her claims. In 7 | the event plaintiff is unable to allege federal subject matter jurisdiction or fails to respond, 8 | plaintiff is advised that her complaint will be dismissed. 9 The court appreciates that for plaintiff time may be of the essence in this matter, but also 10 || wishes to make explicitly clear to plaintiff that federal courts are not permitted to hear all cases 11 | brought before them. To the extent plaintiff realizes that she is unable to allege a basis for federal 12 | jurisdiction, she is encouraged to seek relief with respect to any claims she may have under state 13 | law in the in another court, such as the Tulare County Superior Court. 14 Accordingly, 15 1. Plaintiff is ordered to show cause within seven (7) days of the date of service 16 of this order as to why her case should not be dismissed for lack of subject 17 matter jurisdiction by filing a document with this court stating: (a) whether she 18 brings a claim arising from the constitution, any laws, or treaties of the United 19 States and to identify the specific federal basis in her response; (b) whether she 20 is alleging total diversity of citizenship; and (c) if so, to identify the amount in 21 controversy of her claims; and 22 2. The Clerk of the Court is directed to serve a copy of the order on plaintiff at 23 her address of record. 24 | IT IS SO ORDERED. me □ | Dated: _ July 31, 2021 Vile A Drag 26 UNITED STATES DISTRICT JUDGE 27 28