Kelly v. Arizona Department of Corrections
ORDER that Plaintiff's First Amended Complaint (Doc. 7 ) and this action are dismissed for lack of subject matter jurisdiction. The Clerk of Court must enter judgment accordingly. Signed by Senior Judge Stephen M McNamee on 4/2/2012. (KMG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Aaron Dwayne Kelly,
Arizona Department of Corrections, et
No. CV 12-413-PHX-SMM (LOA)
On February 28, 2012, Plaintiff Aaron Dwayne Kelly, who is confined in the Arizona
State Prison Complex-Eyman in Florence, Arizona, filed a pro se civil rights Complaint and
an Application to Proceed In Forma Pauperis. In a March 5, 2012 Order, the Court granted
the Application to Proceed and dismissed the Complaint for lack of subject matter
jurisdiction. The Court stated:
Rule 8(a) of the Federal Rules of Civil Procedure requires that “[a]
pleading that states a claim for relief must contain: (1) a short and plain
statement of the grounds for the court’s jurisdiction . . . .” In order to proceed
in federal court, Plaintiff must demonstrate some right of action and legal
entitlement to the damages he seeks. In this case, the most likely source of a
right to sue is 42 U.S.C. § 1983. The Court has jurisdiction over such cases
pursuant to 28 U.S.C. § 1343(a)(3).
Plaintiff has not alleged that his Complaint arises pursuant to 42 U.S.C.
§ 1983 or that the Court has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3).
He has alleged no jurisdictional basis at all. Section 1983 provides a cause of
action against persons acting under color of state law who have violated rights
guaranteed by the United States Constitution and federal law. Thus, the Court
will dismiss Plaintiff’s Complaint, without prejudice, for lack of subject matter
jurisdiction. See Watson v. Chessman, 362 F. Supp. 2d 1190, 1194 (S.D. Cal.
2005) (“The court will not . . . infer allegations supporting federal jurisdiction;
federal subject matter [jurisdiction] must always be affirmatively alleged.”).
(Emphasis in original.) The Court gave Plaintiff 30 days to file an amended complaint that
cured the jurisdictional defect.
First Amended Complaint
On March 14, 2011, Plaintiff filed a First Amended Complaint (Doc. 7). As was the
case with his original Complaint, Plaintiff has alleged no jurisdictional basis at all. Thus, the
Court will dismiss the First Amended Complaint for lack of subject matter jurisdiction. See
Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Dismissal without Leave to Amend
“Leave to amend need not be given if a complaint, as amended, is subject to
dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). The
Court’s discretion to deny leave to amend is particularly broad where Plaintiff has previously
been permitted to amend his complaint. Sisseton-Wahpeton Sioux Tribe v. United States,
90 F.3d 351, 355 (9th Cir. 1996). Repeated failure to cure deficiencies is one of the factors
to be considered in deciding whether justice requires granting leave to amend. Moore, 885
F.2d at 538.
In the March 5th Order, the Court provided Plaintiff with very specific information
about curing the jurisdictional defect. Plaintiff failed to do so. Therefore, the Court, in its
discretion, will dismiss Plaintiff’s First Amended Complaint without leave to amend.
IT IS ORDERED that Plaintiff’s First Amended Complaint (Doc. 7) and this action
are dismissed for lack of subject matter jurisdiction. The Clerk of Court must enter
DATED this 2nd day of April, 2012.
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