Gumpal v. Queen of the Valley Medical Center et al

Filing 10

ORDER OF DISMISSAL (Illston, Susan) (Filed on 6/26/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAURO GUMPAL, Plaintiff, 8 9 10 11 Case No. 16-cv-06611-SI ORDER OF DISMISSAL v. QUEEN OF THE VALLEY MEDICAL CENTER, et al., United States District Court Northern District of California Defendants. 12 13 In this pro se prisoner’s civil action, plaintiff complained that he had become infected with 14 several illnesses due to the use of contaminated medical instruments at a Napa hospital. The court 15 reviewed the complaint on March 10, 2017, and dismissed it with leave to amend. That order 16 explained that the threshold issue was whether there was a claim that would give this court 17 original jurisdiction over this action in which state law negligence and product liability claims 18 predominate because, if there was no federal claim (such as a claim under 42 U.S.C. § 1983), the 19 negligence and products liability claims had to be pursued in state court. (Docket No. 7 at 3.) The 20 court concluded that the complaint failed to state a federal claim (such as a § 1983 claim for an 21 Eighth Amendment violation based on deliberate indifference to a serious medical need), and set a 22 deadline of April 28, 2017, for plaintiff to file an amended complaint. (Docket No. 7.) The court 23 explained that “[f]ailure to file the amended complaint by the deadline will result in the dismissal 24 of the action without prejudice to plaintiff pursuing his state law claims in state court.” (Id. at 5.) 25 Plaintiff did not file an amended complaint, and the deadline by which to do so has long passed. 26 Accordingly, this action is DISMISSED for lack of subject matter jurisdiction because no federal 27 claim has been stated. 28 1 This court never reached the viability of the state law claims because it never found a claim 2 stated that would give this court original jurisdiction. Thus, this dismissal is without prejudice to 3 plaintiff filing an action in state court asserting his state law claims. Plaintiff is cautioned that he 4 must act diligently to file an action in state court if he wishes to present his claims there, because 5 statutes of limitations set time limits on the filing of an action. 6 7 8 9 IT IS SO ORDERED. Dated: June 26, 2017 ______________________________________ SUSAN ILLSTON United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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