Smith v. Citrus Heights Water District

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/10/2013 GRANTING 2 plaintiff's request for leave to proceed in forma pauperis; plaintiff's complaint is DISMISSED with leave to amend, as provided herein; plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEROME VERNON SMITH,
Plaintiff,

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No. 2:13-cv-1264-KJM-EFB PS

vs.

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CITRUS HEIGHTS WATER DISTRICT,
as part of the SAN JUAN WATER
DISTRICT,

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Defendant.

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ORDER
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This case, in which plaintiff is proceeding in propria persona, was referred to the

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undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff seeks

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. His declaration makes the

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showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, the request to proceed in

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forma pauperis is granted. 28 U.S.C. § 1915(a).

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Determining that plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if

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it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins.

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Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 &

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1332, confer “federal question” and “diversity” jurisdiction, respectively. Federal question

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

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allege a “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or
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(3) be authorized by a federal statute that both regulates a specific subject matter and confers

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federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Plaintiff’s complaint alleges that he has suffered a “personal injury resulting from

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exposure to excess amounts of Radon 222 and Hexavalent Chromium present in the water supply

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in Citrus Heights, California while residing [there] from 2006-2011 and for the past year.” Dckt.

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No. 1 at 1. Therefore plaintiff requests that defendant “pay [him] the partial established liability

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of $50,000,000 pursuant to [42 U.S.C. §] 9607(c)(1)(C).” Id.

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It appears from plaintiff’s complaint that the purported basis for this court’s subject

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matter jurisdiction is his claim for damages under the Comprehensive Environmental Response,

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Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601, et seq.1 However, the

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Supreme Court has held that private damages are unavailable under CERCLA. Specifically, the

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Court noted that “Superfund money [is not] available to compensate private parties for economic

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harms that result from hazardous substance releases. Rather, it seeks to facilitate government

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cleanup of hazardous waste discharges and prevention of future releases.” Exxon Corp. v. Hunt,

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475 U.S. 355, 359-60 (1986), superseded by statute on other grounds as stated in Manor Care,

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Inc. v. Yaskin, 950 F.2d 122, 125 (3d Cir. 1991). “Superfund money may be used to reimburse

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Plaintiff does not allege that he is seeking to recover costs incurred in his response to a
release or threatened release of any hazardous substance, as provided in CERCLA § 107(a), 42
U.S.C. § 9607(a), nor does he seek contribution under CERCLA § 113(f), 42 U.S.C. § 9613(f),
for amounts plaintiff incurred as a result of a release. Nor does plaintiff purport to allege a claim
under the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act), §§ 101
et seq., 33 U.S.C.A. §§ 1251 et seq.
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private parties only for their cleanup activities that are expressly authorized by the Federal

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Government [and] may not be used to pay for injury to persons or property caused by hazardous

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wastes, except for payment to the Federal and State Governments for their natural resource

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losses.” Id. at 360. Therefore, plaintiff’s CERCLA claim – and this action – must be dismissed.

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However, plaintiff will be granted leave to file an amended complaint, if plaintiff can

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allege a cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the allegations against defendant and shall specify a basis for this court’s

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subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in “numbered

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paragraphs, each limited as far as practicable to a single set of circumstances,” as required by

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Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line

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numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and

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130(c). Any amended complaint shall also use clear headings to delineate each claim alleged

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and against which defendant or defendants the claim is alleged, as required by Rule 10(b), and

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must plead clear facts that support each claim under each header.

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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

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make an amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files an amended complaint, the original no longer serves any function in the case.

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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to
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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

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may result in a recommendation that this action be dismissed. See Local Rule 110.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis, Dckt. No. 2, is granted.

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2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint. The amended complaint must bear the docket number assigned to this case and must

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be labeled “Amended Complaint.” Failure to timely file an amended complaint in accordance

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with this order will result in a recommendation this action be dismissed.

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DATED: July 10, 2013.

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