Sing v. Warren et al

Filing 5

ORDER signed by Magistrate Judge Kendall J. Newman on 10/12/2016 ORDERING that Plaintiff's 4 First Amended Complaint is DISMISSED, but with leave to amend. Within 28 days of this order, plaintiff shall file a second amended complaint in acco rdance with this order. Alternatively, if plaintiff no longer wishes to pursue this action in federal court, plaintiff shall file a notice of voluntary dismissal of the action without prejudice within 28 days of this order. Failure to file either a second amended complaint or a notice of voluntary dismissal without prejudice by the required deadline may result in dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAM SING,

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Plaintiff,

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No. 2:16-cv-2024-MCE-KJN PS

v.

ORDER

GEORGE WARREN & CHANNEL 10,

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Defendants.

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On September 27, 2016, the court granted plaintiff’s motion to proceed in forma pauperis

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and dismissed plaintiff’s original complaint with leave to amend.1 (ECF No. 3.) Thereafter, on

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October 5, 2016, plaintiff filed a first amended complaint, which remains pending for screening in

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accordance with 28 U.S.C. § 1915. (ECF No. 4.) For the reasons discussed below, the court

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dismisses plaintiff’s first amended complaint, but with leave to amend.
Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any time if it

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determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails

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to state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant.

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This action proceeds before the undersigned pursuant to Local Rule 302(c)(21).
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A federal court has an independent duty to assess whether federal subject matter

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jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v.

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Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty

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to establish subject matter jurisdiction over the removed action sua sponte, whether the parties

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raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996).

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The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject

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matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original

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jurisdiction over a civil action when: (1) a federal question is presented in an action “arising

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under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of

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citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a).
In this case, plaintiff generally alleges that defendants Channel 10 and George Warren,

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ostensibly a reporter for Channel 10, violated plaintiff’s rights under the United States and

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California constitutions by spreading propaganda about plaintiff, misrepresenting to the public

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that plaintiff took marijuana from California to Nevada, and trespassing on plaintiff’s property in

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the course of performing their news media work. (See generally ECF No. 4.)

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As the court noted in its previous order dismissing plaintiff’s original complaint, a claim

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under 42 U.S.C. § 1983 generally does not lie against a private individual or business entity that

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does not act under color of state law. See Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002).

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However, a private individual’s action can amount to state action under certain circumstances.

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See Franklin, 312 F.3d at 445 (outlining four potential tests: (1) the public function test, (2) the

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joint action test, (3) the state compulsion test, or (4) the governmental nexus test). In his original

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complaint, plaintiff attempted to invoke the joint action test by alleging some type of conspiracy

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between defendants and a local sheriff, but such allegations were noted to be entirely vague and

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conclusory. Plaintiff’s first amended complaint fares no better. Although the first amended

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complaint makes several references to “joint action” and a “civil conspiracy,” it fails to allege any

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non-conclusory facts plausibly suggesting joint action between defendants and any state actor.

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Therefore, plaintiff’s complaint does not state a cognizable federal claim sufficient to
invoke the court’s federal question jurisdiction. Furthermore, there is no diversity of citizenship
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jurisdiction, because plaintiff and defendants are all citizens of California. Consequently, the

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court lacks federal subject matter jurisdiction over this action.

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Accordingly, the court dismisses plaintiff’s complaint, but with leave to amend. If

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plaintiff elects to file an amended complaint, it shall be clearly captioned “Second Amended

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Complaint” and shall cure the jurisdictional deficiencies identified above. Plaintiff is informed

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that the court cannot refer to a prior complaint or other filing in order to make plaintiff’s second

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

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in itself without reference to any prior pleading. As a general rule, an amended complaint

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supersedes the prior pleadings, and once the second amended complaint is filed, the original

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complaint and first amended complaint no longer serve any function in the case.
Finally, nothing in this order requires plaintiff to file a second amended complaint. If

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plaintiff concludes that he is unable to cure such federal jurisdictional deficiencies, he may

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instead elect to file an action in state court.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint is dismissed, but with leave to amend.

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2. Within 28 days of this order, plaintiff shall file a second amended complaint in

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accordance with this order. Alternatively, if plaintiff no longer wishes to pursue this

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action in federal court, plaintiff shall file a notice of voluntary dismissal of the action

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without prejudice within 28 days of this order.

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3. Failure to file either a second amended complaint or a notice of voluntary dismissal

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without prejudice by the required deadline may result in dismissal of the action with

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prejudice pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: October 12, 2016

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