Silva v. Christianson et al

Filing 4

ORDER TO SHOW CAUSE WHY THE COMPLAINT SHOULD NOT BE DISMISSED AND THIS CASE CLOSED DUE TO A LACK OF SUBJECT MATTER JURISDICTION, signed by District Judge Anthony W. Ishii on 9/21/2016. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANK SILVA,

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CASE NO. 1:16-CV-0856 AWI SKO
Plaintiff

v.

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ADAM CHRISTIANSON, et al.,

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ORDER TO SHOW CAUSE WHY THE
COMPLAINT SHOULD NOT BE
DISMISSED AND THIS CASE CLOSED
DUE TO A LACK OF SUBJECT
MATTER JURISDICTION

Defendants

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Plaintiff Frank Silva is proceeding pro se in this civil matter. Defendants are members of

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the Modesto Sheriff’s Department and what appears to be a bank manager. Plaintiff states that the

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basis for this Court’s jurisdiction is the presence of a federal question.

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It is a fundamental precept that federal courts are courts of limited jurisdiction. Owen

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Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); K2 Am. Corp. v. Roland Oil & Gas,

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653 F.3d 1024, 1027 (9th Cir. 2011). Limits upon federal jurisdiction must not be disregarded or

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evaded. Owen Equip., 437 U.S. 365, 374 (1978); Jones v. Giles, 741 F.2d 245, 248 (9th Cir.

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1984). “It is presumed that a cause lies outside this limited jurisdiction, and the burden of

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establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life

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Ins. Co., 511 U.S. 375, 377 (1994); K2 Am., 653 F.3d at 1027. Defects in subject matter

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jurisdiction may be raised at any time, either by the parties or sua sponte by the court. Nevada v.

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Bank of Am. Corp., 672 F.3d 661, 673 (9th Cir. 2012); Olson v. NBC, 855 F.2d 1446, 1453 (9th

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Cir. 1988). “If the court determines at any time that it lacks subject-matter jurisdiction, the court

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must dismiss the action.” Fed. R. Civ. P. 12(h)(3); Washington Envtl. Council v. Bellon, 732 F.3d

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1131, 1138 (9th Cir. 2013).

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Courts have “federal question jurisdiction” over “all civil actions arising under the

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

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of federal question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides

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that federal jurisdiction exists only when a federal question is presented on the face of the

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plaintiff’s properly pleaded complaint.” California v. United States, 215 F.3d 1005, 1014 (9th Cir.

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2000).

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Here, under the “basis for jurisdiction” section of the Complaint,1 Plaintiff has written:

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“Adam Christianson Sheriff’s Dept. won’t call me back left messages 2 time [sic]. Darlene R.

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Collier won’t do fraud on them writing checks, and on fraud on credit card with dish to einsurance

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companys [sic].” In other parts of the Complaint, Plaintiff indicates that Defendant Adam

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Christianson, who is the Sheriff of Stanislaus County, did not make any arrests in connection with

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Plaintiff’s report of a stolen pool sweep, and did not investigate a report of a missing family in

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Turlock, California. Plaintiff also alleges that Defendant McDonald of the Sheriff’s Department

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was involved in small claims case against Plaintiff/Plaintiff’s house, that Jeffrey Reyes of the

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Sheriff’s Department sent a letter that Plaintiff’s house had a foreclosure date of 1-15-16 but there

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was never a foreclosure, Reyes and Macdonald will not return calls, and that Macdonald had

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Plaintiff’s house going to the title company with no pay out.

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There is no federal question apparent from the face of the Complaint. No federal statutes

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are cited, no constitutional provisions are identified, and the Court cannot determine what wrongs

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the defendants committed, if any. It is unclear what Plaintiff is even attempting to allege that

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Defendants did to harm him. Therefore, the Complaint does not invoke federal question

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jurisdiction.2

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As stated above, if this Court lacks subject matter jurisdiction, it must dismiss the case.

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The Complaint is on a pre-printed form. See Doc. No. 1.

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It is not clear whether Plaintiff is attempting to allege claims under 42 U.S.C. § 1983, the general civil rights statute.
In order state a claim under 42 U.S.C. § 1983, Plaintiff must make factual allegations that shows both: (1) a
deprivation of a right secured by the federal Constitution or federal statutory law, and (2) that the deprivation was
committed by a person acting under color of state law. See Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
The Court notes that a failure to investigate or the failure to conduct an adequate investigation, without more, does not
violate the Constitution. See Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985); Mancini v. City of Cloverdale
Police Dept., 2015 U.S. Dist. LEXIS 96995, *11-*13 (N.D. Cal. July 24, 2015) (and cases cited therein).

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Fed. R. Civ. P. 12(h)(3); Bellon, 732 F.3d at 1138. Before the Court dismisses the case, it will

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order Plaintiff to show cause in writing why this case should not be dismissed due to a lack of

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subject matter jurisdiction. In his response to the order to show cause, Plaintiff must identify a

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basis for subject matter jurisdiction and include factual allegations that demonstrate plausible

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claims. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Starr v. Baca, 652 F.3d 1202, 1216 (9th

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Cir. 2011). If Plaintiff’s response is adequate, the Court will grant Plaintiff leave to amend his

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complaint. If Plaintiff’s response is inadequate, or if Plaintiff does not timely respond to this

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order, the Complaint will be dismissed due to a lack of subject matter jurisdiction and this case

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will be closed.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff is to show cause in writing, as discussed above, why this case should not be
dismissed due to a lack of subject matter jurisdiction;

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Plaintiff shall show cause in writing on or before October 11, 2016;3 and

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The failure to timely respond will result in the dismissal of the complaint and the closure

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of this case without further notice.

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IT IS SO ORDERED.
Dated: September 21, 2016
SENIOR DISTRICT JUDGE

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The Court must be in actual receipt of the response on or by October 11, 2016.

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