United States District Court, S.D. California
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE FOR LACK
OF SUBJECT MATTER JURISDICTION
CYNTHIA BASHANT United States District Judge
Rickey LaRoy Phelps, proceeding pro se, filed a
3-page handwritten complaint arising from a past criminal
proceeding and an encounter involving individuals named
Bryanna F. and Tressor Ndandu. There is no identifiable
request for relief in the complaint. In the civil cover
sheet, Plaintiff describes the action as follows: “I
had nothing to do with the [D]etroit case of Tresor and I
never raped or touched Breana [sic] no DNA of mine
found.” And it appears that Plaintiff has failed to
properly effect service.
pro se litigant, the Court construes
Plaintiff’s complaint liberally. See Karim-Panahi
v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir.
1988) (“In civil rights cases where the plaintiff
appears pro se, the court must construe the pleading
liberally and must afford plaintiff the benefit of any
doubt.”). “It is settled law that the allegations
of [a pro se plaintiff’s] complaint,
‘however inartfully pleaded’ are held ‘to
less stringent standards than formal pleadings drafted by
lawyers[.]’” See Haines v. Kerner, 404
U.S. 519, 520 (1972).
following reasons, the Court DISMISSES WITHOUT PREJUDICE the
action in its entirety for lack of subject matter
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “They possess only that power
authorized by Constitution or a statute, which is not to be
expanded by judicial decree.” Id. (internal
citations omitted). “It is to be presumed that a cause
lies outside this limited jurisdiction and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Id. (internal citations
omitted); see also Abrego Abrego v. The Dow Chem.
Co., 443 F.3d 676, 684 (9th Cir. 2006).
matter jurisdiction based upon diversity of citizenship
requires that no defendant have the same citizenship as any
plaintiff.” Tosco Corp. v. Communities for a Better
Env’t, 236 F.3d 495, 499 (9th Cir. 2001) (per
curiam), abrogated on other grounds by Hertz Corp v.
Friend, 130 S.Ct. 1181 (2010). Alternatively, federal
district courts also have “original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
“A plaintiff suing in federal court must show in his
pleading, affirmatively and distinctly, the existence of
whatever is essential to federal jurisdiction, and, if he
does not do so, the court . . . on discovering the [defect],
must dismiss the case, unless the defect be corrected by
amendment.” Tosco, 236 F.3d at 499 (quoting
Smith v. McCullough, 270 U.S. 456, 459 (1926)).
there has not been a request for dismissal, it is
well-established that “a district court’s duty to
establish subject matter jurisdiction is not contingent upon
the parties’ arguments.” See United Investors
Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960,
966 (9th Cir. 2004). Courts may consider the issue sua
sponte. Demery v. Kupperman, 735 F.2d 1139, 1149 n.8
(9th Cir. 1984). Indeed, the Supreme Court has emphasized
that “district courts have an ‘independent
obligation to address subject-matter jurisdiction sua
sponte.’” Grupo Dataflux v. Atlas Global
Grp., L.P., 541 U.S. 567, 593 (2004) (quoting United
States v. S Cal. Edison Co., 300 F.Supp.2d 964, 972
(E.D. Cal. 2004)).
complaint itself does not specifically invoke any particular
jurisdiction, including diversity and federal question.
However, looking to the Civil Cover Sheet attached to the
complaint, Plaintiff checked the box for “U.S.
Government Defendant” under “basis of
jurisdiction.” Upon reviewing the complaint, there is
no mention of the United States Government as a party this
action. Rather, the defendant in this action is identified as
the People of the State of California. And though Plaintiff
mentions a “racist trail” against him and
“unconstitutional” statements argued by the
district attorney, even liberally construing the complaint,
without knowing the relief sought, the Court cannot determine
that Plaintiff asserts a claim that arises from the U.S.
Constitution or a federal statute.
also lacks diversity jurisdiction. There is no identifiable
amount in controversy. Furthermore, Plaintiff indicates in
the civil cover sheet that he is a citizen of California, and
it is apparent that Defendant is also a citizen of
California. “Subject matter jurisdiction based upon
diversity of citizenship requires that no defendant have the
same citizenship as any plaintiff.” Tosco, 236
F.3d at 499. Given that both Plaintiff and Defendant are
citizens of California, Plaintiff also lacks diversity
jurisdiction in this action. See id The Court also
notes that Plaintiffs proof of service is defective as it
fails to comply with Rule 4(c), which states that
“[a]ny person who is at least 18 years old and
not a party may serve a summons and complaint,
” and Rule 4(j)(2). Based on the last order mailed to
Plaintiff being returned as undeliverable with no forwarding
address, Plaintiff also fails to comply Civil Local Rule
83.11. If this action proceeds, it is important that
Plaintiff complies with these rules. Failure to do so may
result in sanctions under Civil Local 83.1, including
dismissal of this action.
CONCLUSION & ORDER
light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE
Plaintiffs complaint in its entirety for ...