United States District Court, E.D. California
ORDER GRANTING IFP REQUEST AND DISMISSING WITH LEAVE
TO AMEND (ECF NO. 2)
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
who proceeds without counsel in this action, has requested
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. (ECF No. 2.) Plaintiff's application
in support of his request to proceed in forma pauperis makes
the showing required by 28 U.S.C. § 1915. Accordingly,
the court grants plaintiff's request to proceed in forma
determination that a plaintiff may proceed in forma pauperis
does not complete the required inquiry. Pursuant to 28 U.S.C.
§ 1915, the court is directed to dismiss the case at any
time if it determines that the allegation of poverty is
untrue, or if the action is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against an immune defendant.
federal court has an independent duty to assess whether
federal subject matter jurisdiction exists, whether or not
the parties raise the issue. See United Investors Life
Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967
(9th Cir. 2004) (stating that “the district court had a
duty to establish subject matter jurisdiction over the
removed action sua sponte, whether the parties
raised the issue or not”); accord Rains v.
Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996).
The court must sua sponte dismiss the case if, at any time,
it determines that it lacks subject matter jurisdiction.
Fed.R.Civ.P. 12(h)(3). A federal district court generally has
original jurisdiction over a civil action when: (1) a federal
question is presented in an action “arising under the
Constitution, laws, or treaties of the United States”
or (2) there is complete diversity of citizenship and the
amount in controversy exceeds $75, 000. See 28
U.S.C. §§ 1331, 1332(a).
case, plaintiff's complaint is handwritten and in parts
is not legible. (See generally ECF No. 1.) Plaintiff
alleges that he was struck by defendant Sophia Gonzalez's
vehicle, which resulted in plaintiff's leg being
amputated, along with other serious injuries. (Id.
at 5.) Based on the face of plaintiff's complaint it is
unclear how defendants Triple A Auto Insurance and California
State Auto Association are involved in this case, however,
presumably they were the insurance carriers for the parties.
Plaintiff requests damages for medical bills, pain and
suffering, and loss of wages. (Id. at 3.)
asserts both diversity of citizenship and federal question as
the bases for jurisdiction. However, both of these rationales
diversity jurisdiction, plaintiff's complaint states that
at least one defendant is a California citizen (ECF No.
1-1.), which defeats diversity. See Johnson v. Columbia
Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir.
thrust of plaintiff's argument regarding federal question
jurisdiction appears to be that defendants violated his due
process rights protected by the Fourteenth Amendment.
(See ECF No. 1.) However, due process claims
generally do not lie against a private individual or
business. “The Fourteenth Amendment's right to due
process only protects discrimination that results from state
action.” Jackson v. Brown, 513 F.3d 1057, 1079
(9th Cir. 2008). Here, plaintiff has not alleged, and does
not appear to be able to allege, any state action that would
implicate due process protections.
clear, under 42 U.S.C. § 1983 the act of a private
individual can amount to state action under certain
circumstances. See Franklin v. Fox, 312 F.3d 423,
445 (9th Cir. 2002) (outlining four potential tests: (1) the
public function test, (2) the joint action test, (3) the
state compulsion test, or (4) the governmental nexus test).
However, plaintiff's allegation of an automobile accident
between private citizens, which also implicates private
businesses, does not appear to fit within any of these
plaintiff's passing references to the First, Fourth,
Fifth, and Eighth Amendments of the Constitution as well as
to sections of the Uniform Commercial Code, the court can
extract no cause of action in plaintiff's complaint
premised on these grounds.
plaintiff's complaint does not state a cognizable federal
claim sufficient to invoke the court's federal question
jurisdiction. Furthermore, the court does not have diversity
jurisdiction. Consequently, the court lacks federal subject
matter jurisdiction over this action.
the court dismisses plaintiff's complaint, but with leave
to amend. If plaintiff elects to file an amended complaint,
it shall be clearly captioned “First Amended
Complaint” and shall cure the jurisdictional
deficiencies identified above. Plaintiff is informed that the
court cannot refer to a prior complaint or other filing in
order to make plaintiff's first amended complaint
complete. Local Rule 220 requires that an amended complaint
be complete in itself without reference to any prior
pleading. As a general rule, an amended complaint supersedes
the original complaint, and once the first amended complaint
is filed, the original complaint no longer serves any
function in the case.
nothing in this order requires plaintiff to file a first
amended complaint. If plaintiff concludes that he is unable
to cure the federal jurisdictional deficiencies, ...