Holley v. United States of America, et al.

Filing 3

Order dismissing complaint with leave to amend, signed by Magistrate Judge Sandra M. Snyder on 4/13/2016. Amended Complaint due by 5/16/2016. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK HOLLEY,

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Plaintiff,

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CASE NO. 1:16-CV-476-LJO-SMS
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
UNITED STATES OF AMERICA; FAMILY
HEALTHCARE NETWORK; DR. FIROOZI,
DDS # 62466,

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Defendants.

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Plaintiff Patrick Holley brings this action in pro se and in forma pauperis against

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defendants Hamed Firoozi, DDS, Family Healthcare Network, and the United States of America

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for actions related to a teeth cleaning on September 2, 2015. Plaintiff alleges federal jurisdiction

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based on federal question under 28 USC § 1331 and diversity of citizenship under 28 USC § 1332.

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Plaintiff’s complaint will be dismissed for lack of jurisdiction with leave to amend.

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I.

SCREENING STANDARD
Under 28 U.S.C § 1915(e)(2), the Court must screen all complaints brought in forma

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pauperis or by prisoners. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). The Court must

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dismiss the complaint or any portion of it that is “frivolous,” “malicious,” “fails to state a claim

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upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune

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from such relief.” 28 U.S.C. § 1915(e)(2). “Notwithstanding any filing fee, or portion thereof, that

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may have been paid, the court shall dismiss the case at any time if the court determines that […]

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the action or appeal […] fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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II.

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SUBJECT MATTER JURISDICTION
Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction only

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over matters authorized by the Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; Kokkonen

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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts have original

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jurisdiction where an action presents a federal question under 28 U.S.C. § 1331, or diversity of

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citizenship under 28 U.S.C. § 1332. To exercise diversity jurisdiction, a federal court must find

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complete diversity of citizenship between the parties opposed in interest, and the amount in

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controversy must exceed $75,000. 28 U.S.C. § 1332(a); Kuntz v. Lamar Corp., 385 F.3d 1177,

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1181 (9th Cir. 2004). To exercise federal question jurisdiction the civil action must “aris[e] under

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the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

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Plaintiff alleges that he is a resident of Tulare County, California. He alleges that Hamed

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Firoozi, DDS is a doctor of dental surgery licensed to practice in California and employed by

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Family Healthcare Network in Tulare County, California. Plaintiff alleges that Family Healthcare

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Network is a nonprofit organization based in Tulare County, California that operates federally

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qualified health centers. Plaintiff alleges that the Unites States of America is Family Healthcare

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Network’s employer and that Family Healthcare Network’s employees are federal employees.

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Plaintiff has not sufficiently alleged diversity jurisdiction because he is a resident and citizen of

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California and at least one defendant, Family Healthcare Network, is also a resident and citizen of

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California. Therefore, complete diversity of citizenship between the parties is not present in this

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case.

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In addition, Plaintiff brings his case against Defendants for “negligence, lack of informed

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consent, res ipsa loquitor, and negligence/failure to treat dental malpractice.” These causes of

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action do not arise under the Constitution or federal law. It appears that these causes of action arise

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under California state law. Plaintiff has not cited any federal statute or law under which he brings

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this action. It is most likely that Plaintiff’s relief exists in the California Superior Court.

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Therefore, the Court does not have jurisdiction over this case. It will be dismissed for lack

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of subject matter jurisdiction. FRCP 12(b)(1). This dismissal does not reflect on the merits of

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Plaintiff’s claims and is without prejudice to Plaintiff’s ability to file this action in the proper state
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court.
III.

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LEAVE TO AMEND
Plaintiff is proceeding pro se and will be given the opportunity to amend his complaint

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only in order to sufficiently allege federal subject matter jurisdiction. Plaintiff is not required to

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file an amended complaint, but failure to do so by the deadline will result in dismissal of this

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action. Plaintiff may also file a voluntary dismissal of this action and file his action in the proper

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state court. If Plaintiff elects to file an amended complaint, it must bear the docket number

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assigned in this case and be labeled “First Amended Complaint.” Plaintiff is advised that an

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amended complaint supersedes the original complaint and must be “complete in itself without

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reference to the prior or superseded pleading,” Local Rule 220.
IV.

ORDER
Based on the foregoing, it is hereby ORDERED that Plaintiff’s complaint is DISMISSED

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with leave to amend. Plaintiff may file an amended complaint curing the deficiencies identified by

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the Court in this order within thirty (30) days from the date of service of this order.

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Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is deferred until the Court
determines that it has jurisdiction over this action.

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IT IS SO ORDERED.
Dated:

April 13, 2016

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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