United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed a complaint and
has requested leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. He has also filed a motion to compel
discovery. ECF No. 8. This proceeding was referred to this
court by Local Rule 302 pursuant to 28 U.S.C. §
Application to Proceed In Forma Pauperis
has requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis. ECF Nos. 2, 7. Plaintiff's
declaration makes the showing required by 28 U.S.C. §
1915(a). However, the court will not assess a filing fee at
this time. Instead, the undersigned will recommend that the
complaint be summarily dismissed.
alleges that after being beaten and suffering a head injury
in late 2006 or 2007, he began suffering from seizures or
blackouts. ECF No. 1 at 3. On January 15, 2007, he went to
the emergency room for his head injury. Id. He was
told that part of his brain “was slightly large and
needed close follow up with an MRI” otherwise he could
end up with side-effects, including seizures. Id.
Throughout 2007 and 2008, his primary doctor, defendant
Malak, never conducted a follow-up or warned him of any
potential dangers from the injury. Id. at 3-4. On
March 4, 2008, defendant Anslinger, who was defendant
Malak's physician's assistant, medically cleared
plaintiff for a commercial driver's license. Id.
at 4. On October 5, 2008, plaintiff was driving his
step-father's tour bus when he had a seizure which caused
a major accident and resulted in the deaths of ten
individuals, including his step-father. Id. As a
result of the incident, defendant Anslinger was found guilty
of negligence and had his license suspended. Id.
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). “[F]ederal courts, unlike their
state counterparts, are courts of limited
jurisdiction.” Nw. Airlines, Inc. v. Transp.
Workers Union of America, 451 U.S. 77, 95 (1981) (citing
United States v. Standard Oil Co., 332 U.S. 301, 313
(1947)). “The district courts . . . have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.
appears to be trying to bring a claim for professional
negligence and/or personal injury. ECF No. 1. However, this
court does not have jurisdiction to hear state law claims
unless there is diversity of citizenship or the complaint
contains related federal claims. 28 U.S.C. §§ 1332,
1367. Diversity does not exist here because plaintiff and
defendants are all located within California. ECF No. 1 at
1-2. Accordingly, the court can only consider plaintiff's
state tort claims if he also has a claim under federal law or
the United States Constitution.
complaint does not allege any federal claims, and to the
extent that plaintiff may be attempting to assert a claim
against defendants under 42 U.S.C. § 1983 for deliberate
indifference, he is unable to do so. “To state a claim
for relief in an action brought under § 1983,
[plaintiff] must establish that [he was] deprived of a right
secured by the Constitution or laws of the United States, and
that the alleged deprivation was committed under color of
state law.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999). It is clear from
the complaint and attached documents that defendants Malak
and Anslinger were working in private practice and not for a
government entity. It is also clear that the conduct
plaintiff complains of took place prior to his incarceration
and was therefore not part of some agreement with the state
to provide inmates with medical care. Because defendants were
not acting under color of state law, plaintiff cannot bring
claims against them under § 1983.
plaintiff makes only state law claims and there is no
diversity of citizenship, this court lacks subject-matter
jurisdiction over the claims. Alternatively, if plaintiff is
making claims under § 1983, those claims are not
cognizable because defendants were not acting under color of
state law and this court declines to exercise supplemental
jurisdiction over plaintiff's state law
claims. Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988) (when federal claims are eliminated
before trial, district courts should usually decline to
exercise supplemental jurisdiction).
No Leave to Amend
to amend should be granted if it appears possible that the
defects in the complaint could be corrected, especially if a
plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122,
1130-31 (9th Cir. 2000) (en banc); Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro
se litigant must be given leave to amend his or her
complaint, and some notice of its deficiencies, unless it is
absolutely clear that the deficiencies of the complaint could
not be cured by amendment.”) (citing Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However,
if, after careful consideration, it is clear that a complaint
cannot be cured by amendment, the court may dismiss without
leave to amend. Cato, 70 F.3d at 1005-06.
undersigned finds that, as set forth above, the court lacks
subject-matter jurisdiction over the claims. Alternatively,
any federal claims that plaintiff may be attempting to make
fail because defendants were not acting under color of state
law and the court declines to exercise supplemental
jurisdiction over plaintiff's state law claims. For these
reasons, the ...