Debbs v. AM PM Gas Station ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EURAL DEBBS SR., Case No. 1:22-cv-00403-DAD-BAK (BAM) 12 Plaintiff, ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS 13 v. (Doc. 2) 14 AM/PM GAS STATION, SCREENING ORDER GRANTING 15 Defendant. PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT 16 (Doc. 1) 17 THIRTY-DAY DEADLINE 18 19 Plaintiff Eural Debbs, Sr. (“Plaintiff”), proceeding pro se, initiated this purported civil 20 rights action against AM/PM Gas Station on April 7, 2022. (Doc. 1.) Concurrent with his 21 complaint, Plaintiff filed an application to proceed in forma pauperis. (Doc. 2.) 22 I. Application to Proceed in Forma Pauperis 23 Plaintiff has requested leave to proceed in forma pauperis pursuant to Title 28 of the 24 United States Code section 1915(a). Plaintiff has made the showing required by section 1915(a), 25 and accordingly, the request to proceed in forma pauperis is GRANTED. 28 U.S.C. § 1915(a). 26 II. Screening Requirement and Standard 27 The Court screens complaints brought by persons proceeding in pro se and in forma 28 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 1 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 2 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 3 U.S.C. § 1915(e)(2)(B)(ii). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 9 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 10 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 11 To survive screening, Plaintiff’s claims must be facially plausible, which requires 12 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 13 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 14 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 15 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 16 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 17 III. Plaintiff’s Allegations 18 In summary, Plaintiff alleges that he rode his wheelchair into the AM/PM on a hot day in 19 June 2021. As Plaintiff lifted his cup to get “some slurpe,” he did not notice the machine was 20 being cleaned and he filled up his cup. (Doc. 1 at 5.) There was cleaning solution in the machine 21 and Plaintiff drank it. He had to go to the emergency room and was diagnosed with toxic 22 chemicals. 23 Plaintiff feels that his constitutional rights were violated when the defendant failed to act 24 in a safe manner by posting a sign. Plaintiff also contends that defendant breached its duty, 25 constituting negligence. He requests compensatory damages in the amount of $3 million dollars. 26 In a supporting declaration, Plaintiff contends that defendant’s failure to post any sign violated his 27 constitutional rights under 42 U.S.C. § 1983 and is a civil rights deprivation. (Doc. 1 at 7.) 28 /// 1 IV. Discussion 2 Plaintiff’s complaint fails to state a cognizable claim under 42 U.S.C. § 1983 and fails to 3 establish this Court’s jurisdiction. As Plaintiff is proceeding pro se, he will be granted leave to 4 amend his complaint to cure the identified deficiencies to the extent he can do so in good faith. To 5 assist Plaintiff, the Court provides the relevant pleading and legal standards. 6 A. 42 U.S.C. § 1983 7 Section 1983 provides: 8 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 9 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the 10 Constitution and laws, shall be liable to the party injured in an action at law.... 11 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must both (1) allege the deprivation 12 of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation 13 was committed by a person acting under color of state law.” Anderson v. Warner, 451 F.3d 1063, 14 1067 (9th Cir. 2006). Generally, private parties do not act under color of state law for § 1983 15 purposes. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). Indeed, the law presumes 16 that conduct by private actors is not state action. Florer v. Congregation Pidyon Shevuyim, N.A., 17 639 F.3d 916, 922 (9th Cir. 2011). The ultimate issue in determining whether a person is subject 18 to suit under § 1983 is whether the alleged infringement of federal rights is fairly attributable to 19 the state. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); see also Huffman v. Cty. of L.A., 147 20 F.3d 1054, 1057 (9th Cir. 1998) (holding that a defendant must have acted “under color of law” to 21 be held liable under § 1983). Simply put, § 1983 “excludes from its reach merely private conduct, 22 no matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 23 40, 50 (1999) (citations and internal quotations omitted). 24 Here, Plaintiff fails to plead sufficient facts to establish that the defendant gas station (or 25 corporation) was acting under color of state law. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 26 1056, 1060 (9th Cir. 2007) (allegation of state action is “necessary element of a § 1983 claim”). 27 /// 28 /// 1 B. Jurisdiction 2 Federal courts are courts of limited jurisdiction and may adjudicate only those cases 3 authorized by the Unites States Constitution and Congress. Kokkonen v. Guardian Life Ins. Co., 4 511 U.S. 375, 377 (1994). “Federal courts are presumed to lack jurisdiction, ‘unless the contrary 5 appears affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) 6 (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)). Without jurisdiction, 7 the district court must dismiss the case. See Morongo Band of Mission Indians v. California State 8 Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). 9 Generally, there are two bases for subject matter jurisdiction: (1) diversity jurisdiction; and 10 (2) federal question jurisdiction. 28 U.S.C. §§ 1331, 1332. 11 1. Diversity Jurisdiction 12 Pursuant to 28 U.S.C. § 1332, federal district courts have diversity jurisdiction over civil 13 actions “where the matter in controversy exceeds the sum or value of $75,000,” and where the 14 matter is between “citizens of different states.” 28 U.S.C. § 1332(a)(1). 15 Here, Plaintiff affirmatively states in his complaint that jurisdiction is not based on 16 diversity of citizenship. (Doc. 1 at 4.) Moreover, Plaintiff’s complaint does not allege diversity 17 jurisdiction. For instance, Plaintiff does not allege that the parties are citizens of different states. 18 He notes only that the AM/PM Corporation has its principal place of business in California. (Id. 19 at 5.) Further, Plaintiff does not establish that the matter in controversy exceeds the sum or value 20 of $75,000. Although he seeks compensatory damages in the amount of $3 million, he does not 21 identify any concrete injuries or damages. Thus, as currently pled, Plaintiff’s complaint does not 22 establish diversity jurisdiction. 23 2. Federal Question Jurisdiction 24 Pursuant to 28 U.S.C. § 1331, federal district courts have jurisdiction over “all civil 25 actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises 26 under’ federal law either where federal law creates the cause of action or ‘where the vindication 27 of a right under state law necessarily turn[s] on some construction of federal law.’” Republican 28 Party of Guam v. Gutierrez, 277 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting Franchise Tax Bd. 1 v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983)). The presence or absence of 2 federal-question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc. v. 3 Williams, 482 U.S. 386, 392 (1987). Under the well-pleaded complaint rule, “federal jurisdiction 4 exists only when a federal question is presented on the face of the plaintiff’s properly pleaded 5 complaint.” Id. In this instance, Plaintiff does not allege any violation arising under the 6 Constitution, laws or treaties of the United States. Thus, as pled, Plaintiff’s complaint does not 7 establish federal question jurisdiction. 8 C. State Law Claims 9 Plaintiff appears to assert a state law claim for negligence. Under 28 U.S.C. § 1367(a), in 10 any civil action in which the district court has original jurisdiction, the “district courts shall have 11 supplemental jurisdiction over all other claims that are so related to claims in the action within 12 such original jurisdiction that they form part of the same case or controversy under Article III of 13 the United States Constitution,” except as provided in subsections (b) and (c). The Supreme Court 14 has stated that “if the federal claims are dismissed before trial, ... the state claims should be 15 dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). Although 16 the Court may exercise supplemental jurisdiction over state law claims, Plaintiff must first have a 17 cognizable claim for relief under federal law. 28 U.S.C. § 1367. As Plaintiff has not stated a 18 cognizable claim for relief under federal law, the Court declines to exercise supplemental 19 jurisdiction over any purported state law claims and they will not be screened. 20 V. Conclusion and Order 21 Plaintiff’s complaint fails to state a cognizable claim under 42 U.S.C. § 1983 and fails to 22 establish this Court’s jurisdiction. As Plaintiff is proceeding pro se, the Court will grant Plaintiff 23 an opportunity to amend his complaint to cure these deficiencies to the extent he is able to do so 24 in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 25 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 26 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 27 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must 28 be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 1 (citations omitted). Additionally, Plaintiff may not change the nature of this suit by adding new, 2 unrelated claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 3 2007) (no “buckshot” complaints). 4 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 5 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 6 complaint must be “complete in itself without reference to the prior or superseded pleading.” 7 Local Rule 220. 8 Based on the foregoing, it is HEREBY ORDERED that: 9 1. The Clerk’s Office shall send Plaintiff a complaint form; 10 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 11 first amended complaint curing the deficiencies identified by the Court in this order or file a 12 notice of voluntary dismissal; and 13 3. If Plaintiff fails to file an amended complaint in compliance with this order, the 14 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order and 15 for failure to state a claim. 16 IT IS SO ORDERED. 17 18 Dated: May 2, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28