Hopson v. Pepperbush Holding LLC et al

Filing 3

ORDER: (1) Granting Motion to Proceed IFP; and (2) Sua Sponte Dismissing Complaint. If Plaintiff wishes to file a FAC, it must be filed by March 15, 2016. Signed by Judge Roger T. Benitez on 2/9/2016.(All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 SHANNON R. HOPSON, Plaintiff, 13 14 15 Case No.: 15CV1594 BEN (MDD) ORDER: (1) GRANTING MOTION TO PROCEED IFP v. PEPPERBUSH HOLDING LLC, et al., Defendants. 16 (2) SUA SPONTE DISMISSING COMPLAINT 17 [Docket No. 2] 18 Plaintiff Shannon R. Hopson, proceeding pro se, has filed a Complaint. (Docket 19 20 No. 1.) Plaintiff has not paid the civil filing fee required to commence this action, but has 21 filed a motion to proceed in forma pauperis (“IFP”). (Docket No. 2.) For the reasons set 22 forth below, the Court GRANTS the motion to proceed IFP and sua sponte screens and 23 DISMISSES the Complaint for lack of subject matter jurisdiction. DISCUSSION 24 25 26 27 I. Motion to Proceed IFP All parties instituting any civil action in a district court must pay a filing fee. 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire 1 15CV1594 BEN (MDD) 1 fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). 2 Under 28 U.S.C. § 1915(a)(1), 3 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 4 5 6 7 8 The information provided in Plaintiff’s affidavit reflects an inability to pay the fee 9 to pursue this action. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 10 is GRANTED. 11 II. 12 Sua Sponte Screening An IFP complaint is subject to mandatory screening. Pursuant to 28 U.S.C. § 13 1915(e)(2)(B), the Court must dismiss any complaint if at any time the Court determines 14 that it is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” 15 or “seeks monetary relief against a defendant who is immune from such relief.” The sua 16 sponte screening is mandatory. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 17 (en banc); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) 18 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 19 The caption of Plaintiff’s Complaint lists wrongful death, elder abuse, elder 20 financial abuse, and mental stress. Plaintiff names Defendant Peppperbush Holdings 21 LLC, formerly Chase Care Center and two individuals as defendants. Plaintiff’s 22 Complaint appears to allege the deficient medical care of Floyd Hopson. 23 Plaintiff invokes jurisdiction under 42 U.S.C. § 1983, however, “[t]o make out a 24 cause of action under section 1983, plaintiff[] must plead that (1) the defendants acting 25 under color of state law (2) deprived plaintiffs of rights secured by the Constitution or 26 federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). The 27 2 15CV1594 BEN (MDD) 1 Complaint does not allege any conduct by Defendant Pepperbush1 that was under color of 2 state law. Defendant appears to be a private entity and there are no allegations that would 3 suggest Defendant was acting under color of state law in providing medical care. 4 Accordingly, the Complaint does not state a claim under § 1983. 5 Additionally, the claims Plaintiff asserts are state law claims. Federal courts 6 generally lack subject matter jurisdiction over state law claims unless the parties are 7 citizens of different states, i.e. diverse, and the amount in controversy exceeds $75,000. 8 28 U.S.C. § 1332. There are no allegations as to the citizenship of the parties. 9 Accordingly, this Court does not have subject matter jurisdiction over Plaintiff’s state law 10 claims. 11 Although it appears the state law claims asserted may be more appropriately 12 brought in state court, the Court grants Plaintiff leave to file a First Amended Complaint 13 that cures the deficiencies noted above. If Plaintiff elects to file a FAC, it must be filed 14 on or before March 15, 2016. If Plaintiff does not file a FAC by March 15, 2016, the 15 case will remain closed. 16 CONCLUSION 17 Plaintiff’s motion to proceed IFP is GRANTED. Plaintiff’s Complaint is sua 18 sponte DISMISSED. If Plaintiff wishes to file a FAC, it must be filed by March 15, 19 2016. 20 21 IT IS SO ORDERED. Dated: February 9, 2016 22 23 24 25 26 27 1 The Civil Cover sheet includes the names of two individuals, however, the Complaint lacks any allegations against them. 3 15CV1594 BEN (MDD)

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