The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
This case was removed to federal court from Sacramento County Superior Court on August 20, 2010, pursuant to 28 U.S.C. §§ 1441 and 1442. See Docket # 1. Plaintiff herein is a prisoner incarcerated in South Carolina proceeding pro se.
In his complaint, plaintiff expressly named as defendants: "Defense Technology U.S." and "United States Attorney of Sacramento." See Complaint, Dkt.# 1-1. Plaintiff alleges that on August 9, 2008, he was "assaulted and battered by  mace" as a bystander inmate on a wing of Perry Correctional Institution (in South Carolina) when officers sprayed an unreasonable amount of mace into a cell. Id. at 6-7. Plaintiff claims that Defense Technology U.S., a manufacturer of, inter alia, mace and pepper spray intended for law enforcement, correctional and military personnel, have violated his due process rights "a.) by failing to ensure their product is not used to unreasonably violate a person, b.) by creating a bigger mace canister so that others can use more mace." Id. at 8-9. Plaintiff also alleges that defendant Defense Technology U.S. is liable for gross negligence by failing to provide adequate information both about the dangerous side of effects of mace on bystanders and about how and when to treat a victim and/or bystander; by failing to ensure their product is not misused and failing to provide information as to proper decontamination procedures; and by not reporting criminal use of their product and failing to discontinue distributing their product to any who have used their product in a criminal manner. Id. at 9.
Plaintiff alleges that the defendant United States Attorney violated his due process rights under the state constitution and by failing, under "criminal statutes 18 U.S.C. [§]§ 241 and 242 [to] give plaintiff's letter of request a minimal amount of consideration." Dkt. # 1-1, p. 8. Plaintiff also accuses defendant U.S. Attorney of gross negligence under the same statutes, stating that plaintiff promptly notified this defendant of the spraying incident after which plaintiff was left for several hours in mace-contaminated air without medical assistance leaving him to suffer painful side effects. Id. Plaintiff claims that due to his status as an inmate, defendant U.S. Attorney had a responsibility and duty to him to consider his request regarding the question of probable cause for the commission of a crime, but failed to do so. Id. Plaintiff seeks money damages, including punitive, and asks for injunctive relief in the form of defendant U.S. Attorney being required to give plaintiff's allegations "a fair consideration of whether to investigate and/or prosecute." Id. at 9.
Pending before the court are: 1) a motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, filed on August 27, 2010, by defendants United States Attorney of Sacramento and United States of America,*fn1 to which plaintiff filed a response on September 16, 2010, after which defendants filed their reply, on September 23, 2010; 2) plaintiff's motion for summary judgment, filed on September 29, 2010, to which the federal defendants filed their opposition on October 15, 2010; 3) plaintiff's second motion for appointment of counsel, filed on December 16, 2010; 4) plaintiff's motion for substitution of parties, filed on December 27, 2010, to which the federal defendants filed a response on January 7, 2011, after which plaintiff filed a reply on January 10, 2011.*fn2 Motion to Dismiss The federal defendants move for dismissal under Fed. R. Civ. 12(b)(1), on the grounds that the court lacks subject matter jurisdiction over plaintiff's claims and expressly preserve their right to the defense of insufficiency of service of process.*fn3 Motion to Dismiss (MTD), dkt. # 8.
Legal Standard for Rule 12(b)(1) Motion to Dismiss Federal district courts are courts of limited jurisdiction. U.S. Const. Art. III, § 1 provides that the judicial power of the United States is vested in the Supreme Court, "and in such inferior Courts as the Congress may from time to time ordain and establish." Congress therefore confers jurisdiction upon federal district courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697-99, 112 S. Ct. 2206, 2212 (1992). Since federal courts are courts of limited jurisdiction, a case presumably lies outside the jurisdiction of the federal courts unless proven otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994). Lack of subject matter jurisdiction may be raised at any time by either party or by the court. See Attorneys Trust v. Videotape Computer Products,Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).
First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).
Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn4
If a plaintiff has no standing, the court has no subject matter jurisdiction. "[B]efore reaching a decision on the merits, we [are required to] address the standing issue to determine if we have jurisdiction."
Nat'l Wildlife Fed'n v. Adams, 629 F.2d 587, 593 n. 11 (9th Cir.1980). "[T]he standing question is whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify the exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498- 99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). There are three requirements for standing:
(1) "a plaintiff must have suffered an 'injury in fact'--an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical;'" (2) "there must be a causal connection between the injury and the conduct complained of--the injury has to be 'fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court;'" and (3) "it must be 'likely' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted) (alterations in original).
Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835, 847 ...