ORDER AND FINDINGS AND RECOMMENDATIONS
This case, in which plaintiff is proceeding pro se and in forma pauperis, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Pending before the undersigned is defendant's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction and for failure to state a claim. Dckt. No. 4. For the reasons stated herein, the undersigned recommends that the motion be granted.
Defendant argues that the court lacks subject matter jurisdiction over plaintiff's complaint because there is no federal question raised in the complaint and that plaintiff fails to state a claim upon which relief may be granted because plaintiff is not a real party in interest and has not alleged facts supporting a federal civil rights violation or any other federal cause of action. Dckt. No. 4-2 at 2, 3. Specifically, defendant argues that plaintiff's claim appears to be one for medical negligence, which is not a federal claim; that plaintiff's complaint is based on injuries allegedly suffered by plaintiff's daughter, and the complaint is not brought on the injured daughter's behalf; and plaintiff cannot state a claim under 42 U.S.C. § 1983 since defendant is not a state actor but is instead a private physician. Id. at 2-4.
Plaintiff responds, inter alia, that "Dr. Lemendola works for the County of Sacramento which is govern[ed] by the State of California." Dckt. No. 6 at 5. Plaintiff contends that "Dr. Lemendola provides medical care to babies through Health Net Medical Insurance, Co. which is govern[ed] by the County of Sacramento and the State of California." Id. Plaintiff also contends that he is his daughter's legal guardian and argues that he has a legal right to represent her or himself pro se since he is unable to afford representation. Id. at 6, 7.
Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) "requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer "federal question" and "diversity" jurisdiction, respectively. Federal question jurisdiction requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be authorized by a federal statute that both regulates a specific subject matter and confers federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court's diversity jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
Here, plaintiff's complaint makes no reference to federal law or a federal right, and does not assert diversity jurisdiction. "A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). Plaintiff's complaint instead appears to assert a state law claim of medical negligence, which should be brought in state court.
Plaintiff's complaint does not state a claim under 42 U.S.C. § 1983. In order to state a claim under § 1983, plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff alleges that defendant injected an overdose of the antibiotic amoxicillin to plaintiff's daughter and that due to the overdose, plaintiff's daughter suffered deadly side effects. Dckt. No. 1. Plaintiff, however, fails to allege that defendant was a state actor or otherwise acted under color of law. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (The party charged with a constitutional deprivation under § 1983 must be a person who may fairly be said to be a governmental actor) (citation and quotations omitted). Section "1983 excludes from its reach merely private conduct, no matter how discriminatory or wrong." Id. (citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted)).*fn1 Rather, it appears that defendant was a private physician who was not acting under color of state law.
Therefore, plaintiff's complaint must be dismissed. Because it does not appear that plaintiff could state a federal claim or otherwise assert proper subject matter jurisdiction in an amended complaint, plaintiff will not be granted leave to file an amended complaint. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in their complaints unless it determines that the pleading could not possibly be cured by the allegation of other facts).
Accordingly, it is hereby ORDERED that:
1. The hearing on defendant's motion to dismiss is vacated; and
2. Plaintiff's motion to appear at the hearing telephonically, Dckt. No. 7, is denied as moot.
Further, it is hereby RECOMMENDED that:
1. Defendant's motion to dismiss, Dckt. No. 4, ...