Marrapese et al v. University of California Board of Regents et al

Filing 7

ORDER DISMISSING Amended Complaint. Because it doesn't appear the Court has jurisdiction over the claims raised in the amended complaint, it is dismissed without prejudice. Plaintiff may file a second amended complaint no later than June 5, 2013. Signed by Judge Larry Alan Burns on 5/22/13. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD J. MARRAPESE JR., et al.,

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CASE NO. 13cv947-LAB (BGS)

Plaintiffs,

ORDER DISMISSING AMENDED
COMPLAINT

vs.
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UNIVERSITY OF CALIFORNIA BOARD
OF REGENTS, et al.,
Defendants.

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Plaintiff Richard Marrapese, Jr., proceeding pro se, filed his complaint on April 19,

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2013, bringing his own claims as well as those of a putative Plaintiff, his deceased father

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Richard Marrapese, Sr. Although the complaint mentioned Marrapese, Sr.’s own claims,

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neither his estate nor the executor nor administrator of his estate is named as a party.

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Marrapese, Jr. moved to proceed in forma pauperis, and for appointment of counsel,

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which the Court denied. The Court also dismissed the complaint, identifying defects in it that

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appeared to deprive the Court of jurisdiction, but permitted him to file an amended complaint.

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Marrapese, Jr. has now filed his amended complaint, and it appears the Court lacks

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jurisdiction over it as well. The Court is obligated to examine its own jurisdiction, regardless

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of whether either party raises the issue, and to dismiss the complaint if jurisdiction is lacking.

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See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc).

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As pointed out in the Court’s order dismissing the original complaint, Marrapese, Jr.

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lacks standing to sue on behalf of his deceased father. Furthermore, he cannot represent

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his father’s estate in bringing any claims his father’s estate might have had, even assuming

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they were not extinguished at his death. See Karras v. Teledyne Indus., Inc., 191 F. Supp.

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2d 1161, 1170–73 (S.D.Cal., 2002). Most of the amended complaint’s claims arise under

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state law. The parties are obviously not diverse, so the Court’s power to adjudicate the

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claims depends on whether the amended complaint includes one or more claims arising

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under federal law, and the state-law claims are part of the same case or controversy. See

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28 U.S.C. § 1367.

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The amended complaint brings three broad claims. Of those, only the first includes

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claims brought by Marrapese, Jr. The remainder of the first claim, as well as the second and

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third claims, are putatively brought on behalf of Marrapese, Sr. Marrapese, Jr. was kept

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from seeing his father, Marrapese, Sr. while the latter was in the hospital receiving treatment.

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It concludes that this was done in retaliation for Marrapese, Jr.’s “protesting Sr.’s plight in

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non-violent way.” (Am. Compl., 2:9–12.) In order to state a claim, Marrapese, Jr. must plead

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facts that, accepted as true, state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). A claim is plausible based on pleaded facts, not based on a plaintiff’s own

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legal conclusions. Id.

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To state a claim for violation of First Amendment rights based on retaliation, a plaintiff

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must show that Defendants acted so as to deter or chill the plaintiff’s speech, and whether

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such deterrance was a substantial or motivating factor in their conduct. Lacey v. Maricopa

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County, 693 F.3d 896, 916 (9th Cir. 2012). A plaintiff need not show that his speech was

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actually inhibited or suppressed, but rather whether the official’s acts would chill or silence

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a person of ordinary firmness. Id. Such a claim would be brought under 42 U.S.C. § 1983.

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The Defendants in this case are the University of California Board of Regents, and

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the UCSD Medical Center. What either or both of these Defendants did is not alleged in

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either the original complaint or the amended complaint. The original complaint alleges that

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“UCSD police” and the UCSD Medical Center’s “senior management” removed him from the
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hospital, claiming that he was disrupting his father’s medical treatment. The complaint never

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alleges who did these things, nor does it allege facts showing he had any right to be present

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in the hospital or authority to direct his father’s medical treatment. It also does not allege

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facts showing anyone took actions that would chill or silence a person of ordinary firmness.

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There is no respondeat superior liability under § 1983; rather, government officials are

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liable only for their own conduct. Maxwell v. County of San Diego, 708 F.3d 1075, 1097 (9th

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Cir. 2013). A supervisor may be liable where the supervisor participated in the violation,

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however. See id. To state a claim, the complaint must allege facts showing that the

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supervisor breached a legal duty to the plaintiff, that the breach was the proximate cause of

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the plaintiff’s constitutional injury, and that the supervisor had the required mens rea as

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would be required for a direct violation of the plaintiff’s rights. Id. The amended complaint

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alleges none of these things, nor are any officials even named as Defendants.

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Because it doesn’t appear the Court has jurisdiction over the claims raised in the

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amended complaint, it is DISMISSED WITHOUT PREJUDICE. If Marrapese, Jr. thinks he

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can correct the defects this order has identified, he may do so by filing a second amended

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complaint no later than June 5, 2013. A second amended complaint that does not comply

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with this order or does not state a cognizable claim over which this Court can exercise

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jurisdiction will be dismissed without leave to amend.

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IT IS SO ORDERED.
DATED: May 22, 2013

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HONORABLE LARRY ALAN BURNS
United States District Judge

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