Kassab v. UC San Diego Health et al
Filing
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ORDER (1) Denying Plaintiffs Motion for Leave to Proceed in Forma Pauperis (2) Dismissing Complaint on Screening Pursuant to 28 U.S.C. § 1915(c)(2)(B)(ii) (Re ECF Nos. 1 , 2 ). Signed by District Judge Ruth Bermudez Montenegro on 1/29/2025. (All non-registered users served via U.S. Mail Service)(rxc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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STEVE KASSAB,
Case No.: 3:25-cv-00023-RBM-DDL
Plaintiff,
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v.
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UC SAN DIEGO HEALTH, et al.,
ORDER:
(1) DENYING PLAINTIFF’S
MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS
Defendant.
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(2) DISMISSING COMPLAINT ON
SCREENING PURSUANT TO 28
U.S.C. § 1915(e)(2)(B)(ii)
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[Docs. 1, 2]
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On January 6, 2025, Plaintiff Steve Kassab (“Plaintiff”) filed a Complaint against
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UC San Diego Health, Rachel Bent, Alice Kistenoff, Jack Hunt, Aaron Myers, Kush
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Vijay Bhatt, and Does 1 through 100 (“Complaint”). (Doc. 1 (“Compl.”).) Along with
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his Complaint, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis (“IFP
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Motion”). (Doc. 2.)
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I.
IFP MOTION
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A.
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All parties instituting any civil action, suit, or proceeding in a district court of the
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United States, except an application for a writ of habeas corpus, must pay a filing fee of
Legal Standard
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3:25-cv-00023-RBM-DDL
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$405.1 28 U.S.C. § 1914(a). A court may authorize the commencement of a suit without
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prepayment of the filing fee if the plaintiff submits a signed affidavit “that includes a
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statement of all assets[,] which shows inability to pay initial fees or give security.” S.D.
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Cal. Civ. R. 3.2(a). The facts of an affidavit of poverty must be stated “with some
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particularity, definiteness, and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234
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(9th Cir. 2015) (quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)).
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The determination of indigency falls within the district court’s discretion. Cal. Men’s
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Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S.
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194 (1993) (“Section 1915 typically requires the reviewing court to exercise its sound
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discretion in determining whether the affiant has satisfied the statute’s requirement of
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indigency.”).
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B.
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It is well-settled that a party need not be completely destitute to proceed IFP, but
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he must adequately prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335
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U.S. 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “[a]n
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affidavit in support of an IFP [motion] is sufficient where it alleges that the affiant cannot
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pay the court costs and still afford the necessities of life.” Escobedo, 787 F.3d at 1234
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(citing Adkins, 335 U.S. at 339); see also McQuade, 647 F.2d at 940 (an adequate
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affidavit should state supporting facts “with some particularity, definiteness and
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certainty”). No exact formula is “set forth by statute, regulation, or case law to determine
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when someone is poor enough to earn IFP status.”
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Consequently, courts must evaluate IFP requests on a case-by-case basis. See id. at
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1235–36 (declining to implement a general benchmark of “twenty percent of monthly
Discussion
Escobedo, 787 F.3d at 1235.
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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $55. See 28 U.S.C. § 1914(a); United States Courts, District Court Miscellaneous
Fee Schedule § 14 (effective Dec. 1, 2023), https://www.uscourts.gov/servicesforms/fees/district-court-miscellaneous-fee-schedule. The additional $55 administrative
fee does not apply to persons granted leave to proceed IFP. Id.
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household income”); see also Cal. Men’s Colony, 939 F.2d at 858 (requiring that district
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courts evaluate indigency based upon available facts and by exercise of their “sound
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discretion”), rev’d on other grounds, 506 U.S. 194 (1993) (citation omitted).
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In his IFP Motion, Plaintiff declares he is unable to pay the costs of these
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proceedings. (Doc. 2 at 1.)2 Plaintiff lists $1,020.00 as his monthly income from
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disability and public assistance benefits. (Id. at 2.) Plaintiff owns a vehicle worth
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$2,500.00. (Id. at 2–3.) Plaintiff spends $100.00 per month on utilities, $100.00 per
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month on home maintenance, $100.00 per month on food, $50.00 on clothing, $50.00 per
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month on laundry and dry cleaning, $50.00 on medical and dental expenses, $150.00 per
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month on transportation, $50 on recreation and entertainment, and $350 on homeowner’s
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or renter’s insurance.3 (Id. at 4.) Plaintiff also states that he has spent, or will be
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spending, $2,204.00 on expenses or attorney fees in conjunction with this lawsuit. (Id. at
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5.) Plaintiff is not owed any money and does not have any dependents who rely on him
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for financial support. (Id. at 3.) Plaintiff does not anticipate any changes to his income
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or expenses in the next twelve months. (Id. at 5.)
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The Court determines Plaintiff’s monthly income is $1,020.00 and his monthly
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expenses are at least $1,000.00. However, the Court is unable to determine with certainty
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the amount in Plaintiff’s checking account because the amount listed is illegible. (See id.
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at 2.) Without this information, the Court cannot fully determine Plaintiff’s financial
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status. Accordingly, Plaintiff’s IFP Motion is DENIED WITHOUT PREJUDICE. If
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Plaintiff wishes to proceed IFP, Plaintiff may file an amended IFP Motion providing clear
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and legible answers to all the questions in the Application by February 14, 2025.
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The Court cites the paragraph numbers of the Complaint and the CM/ECF electronic
pagination for other citations unless otherwise noted.
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The Court notes that Plaintiff indicates his monthly payment for rent or home-mortgage
is $0. (Doc. 2 at 4.)
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II.
SCREENING UNDER 28 U.S.C. 1915(E)
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“Even were the Court to grant Plaintiff’s IFP Motion, Plaintiff’s complaint
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warrants dismissal pursuant to 28 U.S.C. § 1915(e)(2)’s required pre-answer screening.”
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Toussaint v. Venante, Case No. 3:22-cv-245 JLS (AGH), 2022 WL 891112, at *2 (S.D.
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Cal. Mar. 25, 2022) (citations omitted). Every complaint filed pursuant to the IFP
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provisions of 28 U.S.C. § 1915 is subject to a mandatory screening by the Court under §
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1915(e)(2)(B). Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only
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permits but requires a district court to dismiss an [IFP] complaint that fails to state a
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claim.”) (citation omitted). Under that provision, the Court must dismiss complaints that
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are frivolous or malicious, fail to state a claim on which relief may be granted, or seek
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monetary relief from defendants who are immune from such relief. See 28 U.S.C. §
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1915(e)(2)(B). “The purpose of [screening] is ‘to ensure that the targets of frivolous or
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malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
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903, 920 n.1 (9th Cir. 2014) (citation omitted).
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A.
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In addition to reviewing IFP complaints under § 1915, “[f]ederal courts have an
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independent obligation to ensure that they do not exceed the scope of their jurisdiction,
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and therefore they must raise and decide jurisdictional questions that the parties either
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overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,
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434 (2011).
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requirement that jurisdiction be established as a threshold matter ‘spring[s] from the
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nature and limits of the judicial power of the United States’ and is ‘inflexible and without
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exception.’”
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(alteration in original) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382
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(1884)). “If the court determines at any time that it lacks subject-matter jurisdiction, the
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court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Subject Matter Jurisdiction
Courts address the issue of subject matter jurisdiction first, as “[t]he
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998)
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“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.
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Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by
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Constitution and statute, which is not to be expanded by judicial decree.” Id. (citations
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omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, . . . and
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the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id.
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(internal citations omitted). Thus, a plaintiff bears the burden of establishing “subject
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matter jurisdiction.” See Watson v. Chessman, 362 F. Supp. 2d 1190, 1194 (S.D. Cal.
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2005) (“The court will not . . . infer allegations supporting federal jurisdiction; federal
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subject matter [jurisdiction] must always be affirmatively alleged.”) (citations omitted).
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Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must include “a short
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and plain statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1).
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The Court’s jurisdiction can arise in two ways: (1) as “federal question”
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jurisdiction under 28 U.S.C. § 1331; or (2) as “diversity of citizenship” jurisdiction”
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under 28 U.S.C. § 1332. Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Under
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federal question jurisdiction, “courts shall have original jurisdiction of all civil actions
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arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
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“For a case to ‘arise under’ federal law, a plaintiff’s well-pleaded complaint must
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establish either (1) that federal law creates the cause of action or (2) that the plaintiff’s
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asserted right to relief depends on the resolution of a substantial question of federal law.”
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K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th Cir. 2011) (quoting
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Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 948 (9th Cir. 2004)). Under diversity
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jurisdiction, each plaintiff must be a citizen of a different state than each of the
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defendants, and the “amount in controversy” must exceed $75,000. 28 U.S.C. § 1332(a);
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see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (observing that the general-
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diversity statute permits federal district court jurisdiction over suits “between . . . citizens
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of different states.”). A plaintiff can allege the “citizenship” of individuals by stating
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where the individual is “domiciled,” or where the individual resides with the intention to
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remain.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
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Here, the Complaint “is silent as to jurisdiction,” rendering it “subject to dismissal
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for violation of Rule 8.” Toussaint, 2022 WL 891112, at *2. Instead, Plaintiff alleges
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that “the State Superior Court is refusing to give Plaintiff access to the court, and is
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showing the appearance of bias despite receiving court orders. To protect the deadlines,
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Plaintiff is forced to file in the Federal Court of San Diego for the [S]outhern District.”
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(Compl. ¶ 21.) This allegation does not provide a proper basis for the Court’s jurisdiction
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under either federal question or diversity jurisdiction. Plaintiff has therefore failed to
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present any grounds for the Court’s jurisdiction.
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Notwithstanding this deficiency and construing Plaintiff’s pro se Complaint
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liberally, the allegations also do not provide a sufficient basis for this Court to infer that
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subject matter jurisdiction exists.
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question jurisdiction based on Plaintiff’s six state law causes of action for: (1)
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negligence; (2) breach of fiduciary duty; (3) medical battery; (4) lack of informed
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consent; (5) medical malpractice; and (6) false imprisonment without arrest. (Compl. at
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6–12.) As Plaintiff’s claims are rooted in state law and Plaintiff does not allege violation
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of a constitutional right or of federal law, the Complaint does not entitle Plaintiff to the
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Court’s federal question jurisdiction under 28 U.S.C. § 1331. See e.g., Genthner v.
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Chong, Case No. 1:16-cv-01534-AWI-EPG, 2016 WL 6471124, at *2 (E.D. Cal. Nov. 1,
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2016) (“Plaintiff’s claims are state claims for medical malpractice and do not invoke
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federal subject matter jurisdiction.”).
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sufficient facts to determine whether diversity jurisdiction exists, such as the amount of
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damages Plaintiff seeks and any of the Defendants’ citizenship. Bautista v. Pan Am.
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World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (“The essential elements of
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diversity jurisdiction, including the diverse residence of all parties, must be affirmatively
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alleged in the pleadings.”) (citation omitted).
Facially, the Complaint does not invoke federal
Additionally, the Complaint does not contain
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Accordingly, even if Plaintiff is entitled to proceed IFP, the Complaint must be
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DISMISSED for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the
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court determines at any time that it lacks subject-matter jurisdiction, the court must
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dismiss the action.”).
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III.
CONCLUSION
Based on the foregoing considerations, Plaintiff’s IFP Motion (Doc. 2) is DENIED
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WITHOUT
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PREJUDICE. Plaintiff may file a renewed IFP Motion providing clear, legible, and
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complete answers to all the questions in the Application, as well as an amended
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complaint that cures the deficiencies identified above (see Section II.A), on or before
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February 14, 2025.
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PREJUDICE
and
the
Complaint
is
DISMISSED
WITHOUT
IT IS SO ORDERED.
DATE: January 29, 2025
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HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
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