Romano v. US Direct Express

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/20/2014. Plaintiff's 1 Complaint is DISMISSED and he GRANTED 30 days from date of service to tile an Amended Complaint. Plaintiff' 12 Motion for Appointment of Counsel is DENIED. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PERRY ROMANO,

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Plaintiff,

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No. 2:14-cv-1726 TLN CKD PS

v.

ORDER

US DIRECT EXPRESS,

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Defendant.

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Plaintiff is a state prisoner proceeding in this action pro se and in forma pauperis. This

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proceeding was referred to this court by Local Rule 302(c)(21).
By order filed October 9, 2014, plaintiff was ordered to show cause why this action should

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not be dismissed for lack of subject matter jurisdiction. Plaintiff has filed a response in which he

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states this action is properly subject to diversity jurisdiction.1 Plaintiff does not specifically allege

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the citizenship of defendant; however, it appears from the pleadings that defendant may be a

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corporation located in Texas. Although the parties may be diverse, it is questionable whether

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plaintiff can in good faith meet the amount in controversy. Plaintiff claims $1,000,000 in

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damages for a simple credit card dispute. On its face, this exaggerated demand appears to be

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Plaintiff also contends federal question jurisdiction is appropriate because defendant violated
his constitutional rights. Plaintiff cannot state a claim under 42 U.S.C. § 1983 because defendant
is not a state actor. Plaintiff’s contention with respect to federal question jurisdiction is therefore
meritless.
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made in bad faith. See Diefenthal v. C.A.B., 681 F.2d 1039, 1052 (5th Cir. 1982) (“[A] court

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would be remiss in its obligations if it accepted every claim of damages at face value, no matter

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how trivial the underlying injury.”). The complaint will therefore be dismissed with leave to

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amend. In any amended complaint, plaintiff must allege with specificity the basis for diversity

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jurisdiction, including the citizenship of the parties and a good faith claim for the amount in

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controversy and the basis therefor.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make

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plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended complaint

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be complete in itself without reference to any prior pleading. This is because, as a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any

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function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

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and the involvement of each defendant must be sufficiently alleged.

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Plaintiff has requested the appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in

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§ 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find

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the required exceptional circumstances. Plaintiff’s request for the appointment of counsel will

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therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s complaint is dismissed;

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

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complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the

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Local Rules of Practice; the amended complaint must bear the docket number assigned this case

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and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the

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amended complaint; failure to file an amended complaint in accordance with this order will result

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in a recommendation that this action be dismissed; and

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3. Plaintiff’s request for appointment of counsel (ECF No. 12) is denied.
Dated: October 20, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 romano1726.lta

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