The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION FOR DISMISSAL OF PLAINTIFF'S ACTION, WITHOUT PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION (ECF No. 7) OBJECTIONS DUE WITHIN THIRTY-DAYS
On September 20, 2011, Plaintiff, while at liberty and proceeding pro se, paid the filing fee and filed a Complaint alleging legal malpractice and civil rights violation claims against Fresno County, California. (ECF No. 1.)
On September 29, 2011, the action was transferred from United States District Court for the Central District to United States District Court for the Eastern District. (ECF No. 4.)
On December 13, 2011, Plaintiff Filed a First Amended Complaint, the operative pleading now before the Court.
I. SUMMARY OF PLAINTIFF'S COMPLAINT
Plaintiff's complaint is difficult to decipher, but appears to arise from his January 11, 2010, misdemeanor narcotics arrest, allegedly inadequate medical care provided while he was in custody, and dissatisfaction with his subsequent plea bargain. (Compl., ECF No. 7 at 3-6.) Plaintiff alleges that he remained in custody following arrest and then agreed to a plea bargain on June 2, 2010. While in jail, he was denied medication needed for jaw pain and for a "[TB] germ in [his] lungs ...." (Compl. at 4) He was wrongfully denied probation, and wrongfully sentenced, because Defendants provided inadequate legal representation for him. Plaintiff claims breach of fiduciary duty, negligent misrepresentation, legal malpractice, and breach of contract against Defendant Daniel Martin, defense counsel in the underlying criminal proceeding, and Defendant Cimmo & Associates, defense counsel's firm. Plaintiff seeks Seven Million Dollars in damages from these Defendants.
II. ANALYSIS OF PLAINTIFF'S COMPLAINT
A. Subject Matter Jurisdiction
Construing the allegations of the First Amended Complaint most favorably to the Plaintiff, (Scheuer v. Rhodes, 416 U.S. 232 (1974),*fn1 his claims do not involve a federal question*fn2 and do not allege facts showing diversity jurisdiction.*fn3 Plaintiff alleges only state law claims. The Defendants are not alleged to be diverse.
"If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)3; see Saini v. U.S. Citizenship and Immigration Services, 553 F.Supp. 2d. 1170. 1172 (E.D. Cal. 2008) ("[l]ack of subject-matter jurisdiction is never waived and may be raised by either party or the court at any time.") (citing to Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9 th Cir. 1988)); see also Bernstein v. Universal Pictures, Inc., 517 F.2d 976, 979 (C.A.N.Y. May 27, 1975) ("[l]ack of [subject-matter] jurisdiction is so fundamental a defect that [Fed. R. Civ. P. 12(h)3] permits a judge to recognize it sua sponte at any time.").
The Court lacks jurisdiction over the subject matter of this apparent legal malpractice lawsuit. See Shamrock Oil & Gas Corp. V. Sheets, 313 U.S. 100, 109 (1941) ([federal courts are required] to scrupulously confine their own jurisdiction to the precise limits which the statute has defined.").
Insofar as Plaintiff refers to inadequated medical care provided while in custody, he may be undertaking to assert a federal civil rights complaint. If so, he has not alleged facts which would suffice to state such a claim. To state a federal civil rights claim under 42 U.S.C. Section 1983, Plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). Plaintiff's reference to inadequate medical care while in custody is not supported by facts showing deliberate indifference under color of state law. It is not attributed to any named Defendant.
If Plaintiff is attempting to challenge the constitutionality of his
conviction or imprisonment under 42 U.S.C. Section 1983, he must prove
that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a
federal court's issuance of a writ of habeas corpus."*fn4
Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). "A claim for
damages bearing that relationship to a conviction or sentence that has
not been so invalidated is not cognizable under § 1983." Id. at 488.
Plaintiff's Complaint provides no evidence of ...