Sapien v. Chappelle et al

Filing 4

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1 ) ; FIRST AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS, signed by Magistrate Judge Michael J. Seng on 3/21/2017. (Lafata, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD C. SAPIEN,

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Plaintiff,

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CASE NO. 1:16-cv-0910-DAD-MJS
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF No. 1)
AUDREY CHAPPELLE, et al.,

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Defendants.

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FIRST AMENDED COMPLAINT DUE
WITHIN THIRTY (30) DAYS

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Plaintiff is proceeding pro se and in forma pauperis in this action filed on June 24,

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2016. Plaintiff’s complaint is before the Court for screening.
I.

The in forma pauperis statute provides, “Notwithstanding any filing fee, or any

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Screening Requirement

portion thereof, that may have been paid, the court shall dismiss the case at any time if
the court determines that . . . the action or appeal . . . fails to state a claim upon which
relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
II.

Pleading Standard
A complaint must contain “a short and plain statement of the claim showing that

the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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Plaintiff brings this action against Audrey Chappelle, “Sedgwick Claim

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Management [unintelligible]”; Jeremy Lusk, Attorney; Tobin-Lucks LLP; Foster Farms,

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Cherry Plant, Inc.; and Stericycle, Inc.
Plaintiff’s allegations, which are factually sparse, may be fairly summarized as

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follows:
Plaintiff, who worked at Foster Farms “Cherry Plant” during an unspecified period

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of time, broke his collar bone on November 15, 2011.

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Plaintiff accuses (1) Stericycle of failing to inform Plaintiff about a “Q.M.E.” report

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from July 5, 2007, and (2) Foster Farms of failing to inform Plaintiff about a “Q.M.E.”

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report from October 13, 2014. According to Plaintiff, a “Q.M.E. is a certified doctor that

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dispute [sic] difference between emplo[y]er and employee and always be followed with

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the request of the Q.M.E. for the employee.” Compl. at 6.

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Plaintiff asserts jurisdiction is proper in this Court under diversity citizenship and

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federal question—specifically, the Health Insurance Portability and Accountability Act

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(“HIPAA”).

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Plaintiff does not specify the relief that he seeks.
IV.

Analysis
“Federal courts are courts of limited jurisdiction. They possess only that power

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authorized by Constitution and statute, which is not to be expanded by judicial decree. It

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is to be 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.

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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).

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Federal courts are constitutionally required to raise issues related to federal

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subject matter jurisdiction and may do so sua sponte. Arbaugh v. Y&H Corp., 546 U.S.

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500, 514 (2006). A federal court must satisfy itself of its jurisdiction over the subject

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matter before proceeding to the merits of the case. Ruhrgas AG v. Marathon Oil Co., 526

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U.S. 574, 577, 583 (1999). Plaintiff bears the burden of demonstrating that jurisdiction is

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properly before the Court. See Thornhill Publ'g Co. v. General Tel. & Elec. Corp., 594

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F.2d 730, 733 (9th Cir. 1979).

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The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal

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question” and “diversity” jurisdiction, respectively. Federal question jurisdiction requires

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that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3)

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be authorized by a federal statute that both regulates a specific subject matter and

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confers federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962).

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Plaintiff asserts that this case is before the Court pursuant to HIPAA. HIPAA does

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not provide a private cause of action. Webb v. Smart Document Solutions, LLC, 499

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F.3d 1078, 1082 (9th Cir. 2007) (“HIPAA itself does not provide for a private right of

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action”) (citing 65 Fed. Reg. 82601 (Dec. 28, 2000)). There does not appear to be any

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other source of federal jurisdiction under the allegations asserted in the Complaint.

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To invoke the Court's diversity jurisdiction, a plaintiff must specifically allege the

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diverse citizenship of all parties and that the matter in controversy exceeds $75,000. 28

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U.S.C. § 1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th

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Cir. 1987). Section 1332 of Title 28 requires complete diversity of citizenship and the

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presence “of a single plaintiff from the same State as a single defendant deprives the

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district court of original diversity jurisdiction over the entire action.” Abrego Abrego v. The

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Dow Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted).

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It appears that diversity jurisdiction is also lacking. Plaintiff has not specified the

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amount in controversy in the pleading. In addition, Plaintiff has not shown that the parties

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are completely diverse. To the contrary, the Complaint indicates that Plaintiff and at least

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some of the Defendants are residents of California. (Compl. at 2-3.)

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Accordingly, the Complaint must be dismissed.
V.

Conclusion and Order

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The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must

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address the deficiencies noted in this Screening Order. Iqbal, 556 U.S. at 677-78.

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Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is plausible on its

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face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George, 507 F.3d at 607. Plaintiff should

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carefully read this Screening Order and focus his efforts on curing the deficiencies set

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forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1. Plaintiff’s June 24, 2016, Complaint is dismissed with leave to amend;

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2. Within thirty (30) days from the service of this order, Plaintiff shall a first

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amended complaint curing the deficiencies identified by the Court in this

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Screening Order;

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3. The Clerk of Court is directed to send Plaintiff a copy of his complaint filed on

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June 24, 2016, and a copy of the Pro Se Packet; and

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4. If Plaintiff fails to file a first amended complaint or otherwise respond to this

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Order, the Court will dismiss this action, with prejudice, for failure to comply

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with a court order and failure to prosecute.

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IT IS SO ORDERED.
Dated:

March 21, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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