Dean v. Galt Place Senior Living

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/16/18, GRANTING Plaintiff's 4 amended motion to proceed in forma pauperis. Plaintiff's complaint is dismissed, but with leave to amend. Within 28 days of the date of this order , plaintiff shall file a first amended complaint in accordance 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 the date of this order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL DEAN,

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No. 2:18-cv-01693-KJM-CKD PS

Plaintiff,

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v.

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ORDER

GALT PLACE SENIOR LIVING,

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Defendant.

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Plaintiff Michael Dean, who proceeds without counsel in this action, has requested leave

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to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF Nos. 2, 4.) Plaintiff’s

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application in support of his amended request to proceed in forma pauperis makes the showing

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required by 28 U.S.C. § 1915. (See ECF No. 4.) Accordingly, the court grants plaintiff’s

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amended request to proceed in forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any

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time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.

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This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. §
636(b)(1).
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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 alleges that defendant Galt Place Senior Living violated his “basic

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human rights not to be spyed [sic] on or followed without cause.” (ECF No. 1 at 4.) According

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to plaintiff, defendant’s conduct resulted in damaged property, mental anguish and “disturbance

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[of] basic fed[eral] law.” (Id. at 5.) It appears that plaintiff may be attempting to state a claim

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under 42 U.S.C. § 1983, as he has indicated that the nature of his suit is “civil rights” on the civil

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cover sheet. (ECF No. 1-1.)

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Although plaintiff apparently asserts a federal claim under 42 U.S.C. § 1983, such a claim

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generally does not lie against a private individual or business entity that does not act under color

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of state law. See Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002). To be sure, a private

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individual’s action can amount to state action under certain circumstances. See Franklin, 312

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

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the state compulsion test, or (4) the governmental nexus test). Plaintiff has failed to demonstrate

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how defendant’s conduct constitutes state action. Therefore, the complaint does not state a

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cognizable federal claim sufficient to invoke the court’s federal question jurisdiction.

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Furthermore, there is no diversity of citizenship jurisdiction, because plaintiff and defendants are

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all citizens of California. Consequently, the court lacks federal subject matter jurisdiction over

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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 “First 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 first

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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 original complaint, and once the first amended complaint is filed, the original

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complaint no longer serves any function in the case.

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Finally, nothing in this order requires plaintiff to file a first 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 amended motion to proceed in forma pauperis (ECF No. 4) is granted.

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2. Plaintiff’s complaint is dismissed, but with leave to amend.

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3. Within 28 days of the date of this order, plaintiff shall file a first amended complaint

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

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

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action without prejudice within 28 days of the date of this order.

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4. Failure to file either a first 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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Dated: August 16, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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14/ps.dean.1693.granting IFP dismiss with leave

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