Wheeler et al v. Hilo Medical Center, Inc. et al

Filing 6

ORDER ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AND GRANTING IFP APPLICATION. Signed by Magistrate Judge Bernard Zimmerman on 5/22/2009. (bzsec, COURT STAFF) (Filed on 5/22/2009) (Additional attachment(s) added on 5/22/2009: # 1 Proof of Service) (bzsec, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The docket in this case reflects that the complaint was filed by Darrell W. Wheeler ("Wheeler") and Pauline Ellis ("Ellis") (collectively "plaintiffs"). While Wheeler has ) ) Plaintiff(s), ) ) ) v. ) HILO MEDICAL CENTER, et al.,) ) ) ) Defendant(s). ) DARRELL W. WHEELER, et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C 09-1826 BZ ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AND GRANTING IFP APPLICATION

applied to proceed with his complaint in forma pauperis pursuant to 28 U.S.C. § 1915(a), no such application was made by Ellis. If Ellis wishes to proceed with her complaint, she

shall either file an in forma paperis application by June 10, 2009 or pay the filing fee. Under section 1915(e)(2), a court must dismiss a complaint filed in forma pauperis which, liberally construed, fails to state a claim on which relief may be granted. 1 See 28

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U.S.C. 1915(e)(2)(B); Marks v. Slocum, 98 F.3d 494, 495 (9th Cir. 1996) (per curiam); Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5 (9th Cir. 1984). Courts must liberally construe a

pro se litigant's complaint, particularly where civil rights claims are involved. See Balistreri v. Pacifica Police Dep't, Courts must also give a

901 F.2d 696, 699 (9th Cir. 1990).

pro se litigant's complaint the benefit of any doubts. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Having reviewed the complaint, I find that

it fails to state any grounds for this court's jurisdiction. A court must have "personal jurisdiction" over a defendant before it can judge a plaintiff's complaint. Burnham v. Super. Ct., 495 U.S. 604, 608-609 (1990). See Personal

jurisdiction means that a defendant has sufficient connections with California so that it is fair to make the defendant defend itself in a California court. See Keeton v. Hustler If a defendant is

Magazine, Inc., 465 U.S. 770, 775 (1984).

neither present nor resides in California, the defendant must have "certain minimum contacts [with California] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945). Plaintiffs have not alleged any facts demonstrating that this Court has personal jurisdiction over any of the defendants in the complaint with the exception of LitNeutral, LLC, which plaintiffs allege is located in California. this case to continue, plaintiffs must allege facts demonstrating defendants' connections with California in one 2 For

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of two ways.

First, plaintiffs may allege facts demonstrating

that each defendant's relationship with California is significant enough to reasonably require that defendant to defend itself in this Court. Int'l Shoe Co., 326 U.S. at 317.

Second, plaintiffs may allege facts demonstrating that the defendant "purposefully availed" itself of the privileges of conducting activities in California by showing that the defendant engaged in conduct aimed at and having an effect in California. Lee v. City of Los Angeles, 250 F.3d 668, 692 In other words, plaintiffs must allege facts

(9th Cir. 2001).

showing that the defendant's intentional actions had some effect in California so that the defendant, a non-resident, is not required to defend in California an action that had a minimal (or possibly no) effect in the state. Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). Burger King As plaintiffs

have not alleged sufficient facts demonstrating that this Court has personal jurisdiction over the non-resident defendants, their claim cannot proceed as to those defendants. See Sanders v. United States, 760 F.2d 869, 871 (8th Cir. 1985) (dismissing plaintiff's pro se claim under section 1915 for failing to allege facts that would support the exercise of personal jurisdiction over defendants). Because I find that plaintiffs' complaint fails to state an adequate basis for jurisdiction, IT IS HEREBY ORDERED as follows: 1. Plaintiffs' complaint is DISMISSED as to all If

defendants except LitNeutral, LLC with leave to amend.

plaintiffs desire to proceed with this lawsuit as to the 3

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remaining defendants, they must file an amended complaint by June 19, 2009 that demonstrates that they are legally entitled to relief in federal court. The amended complaint should be a

short, legible statement in plain English that explains why plaintiffs think this court has jurisdiction over this action. In amending their complaint, plaintiffs may wish to consult a manual the Court has adopted to assist pro se litigants in presenting their case. This manual is available in the If

Clerk's Office and online at www.cand.uscourts.gov.

plaintiffs do not amend or otherwise comply with this Order by June 19, 2009, this case may be dismissed as to the nonresident defendants. 2. By no later than June 19, 2009, plaintiffs shall

consent to or decline to magistrate judge jurisdiction available online at: www.cand.uscourts.gov. 3. GRANTED. Wheeler's application to proceed in forma pauperis is The marshal shall not serve the complaint, except as

to defendant LitNeutral, LLC pending further order of the Court. Dated: May 22, 2009 Bernard Zimmerman United States Magistrate Judge

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