Spagnolo v. Nadic Network Certified Dentists et al

Filing 5

ORDER (1) Granting Plaintiff's Application To Proceed Without Prepayment of Fees, And (2) Dismissing Complaint With Leave To Amend re 3 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/2/11. Plaintiff has until June 24, 2011, to file an Amended Com plaint. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry .

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

NICK SPAGNOLO,

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)
Plaintiff,
)
)
vs.
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NADIC NETWORK CERTIFIED
)
DENTISTS, ET AL.,
)
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Defendants.
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_______________________________ )

CIVIL NO. 11-00340 JMS/RLP
ORDER (1) GRANTING
PLAINTIFF’S APPLICATION TO
PROCEED WITHOUT
PREPAYMENT OF FEES; AND
(2) DISMISSING COMPLAINT
WITH LEAVE TO AMEND

ORDER (1) GRANTING PLAINTIFF’S APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES; AND (2) DISMISSIMG
COMPLAINT WITH LEAVE TO AMEND
On May 26 2011, Plaintiff Nick Spagnolo (“Plaintiff”), proceeding
pro se, filed a Complaint naming four Defendants (two dentists, and two
organizations related to dentists), apparently seeking relief for malpractice in
dental care.
That same day, Plaintiff filed an Application to Proceed Without
Prepaying Fee or Costs (“Application”). Based on the following, the court:
(1) GRANTS Plaintiff’s Application; (2) DISMISSES the Complaint for lack of
subject matter jurisdiction, and (3) GRANTS Plaintiff leave to file an Amended

Complaint asserting a complete basis for federal jurisdiction.1
I. ANALYSIS
A.

Plaintiff’s Application Is Granted
Plaintiff’s Application indicates that his income from the Social

Security Administration for Supplemental Security Income is $674 per month. He
apparently also has other income of $383.00 per month. He lists $3,000 in cash or
savings. Because Plaintiff has made the required showing under 28 U.S.C. § 1915
to proceed in forma pauperis (i.e., without prepayment of fees), the court
GRANTS Plaintiff’s Application.
B.

Plaintiff’s Complaint is Dismissed Without Prejudice
1.

Standards of Review
The court must subject each civil action commenced pursuant to 28

U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it
finds “frivolous, malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune from such relief.” 28
U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
(en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the

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Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without
a hearing.
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court to sua sponte dismiss an in forma pauperis complaint that fails to state a
claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding
that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).
A complaint that lacks any basis for federal subject matter jurisdiction is subject to
dismissal pursuant to § 1915(e)(2). Cato v. United States, 70 F.3d 1103, 1106-07
(9th Cir. 1998).
Plaintiff is appearing pro se; consequently, the court liberally
construes his pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987)
(“The Supreme Court has instructed the federal courts to liberally construe the
‘inartful pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam))).
2.

Application to the Complaint’s Allegations
Applying the preceding principles, the court dismisses Plaintiff’s

Complaint for lack of subject matter jurisdiction. Plaintiff alleges federal
jurisdiction “by means of federal court diversity of citizenship.” Compl. ¶ 3. He
seeks monetary damages above the jurisdictional threshold in 28 U.S.C. § 1332.
His cause of action is apparently for state law violations -- negligent dental care.
Plaintiff, however, fails to assert the citizenship of any of the
Defendants. Without such allegations, the Complaint fails to state a basis of
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federal jurisdiction. See, e.g., Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d
1187, 1189-90 (9th Cir. 1970) (indicating that “[a] plaintiff suing in a federal court
must show in his pleading, affirmatively and distinctly, the existence of whatever is
essential to federal jurisdiction” and therefore “the existence of diversity
jurisdiction must be sufficient on the face of the complaint”) (citation omitted);
Fed. R. Civ. P. 8(a)(1) (providing that a complaint “must contain . . . a short and
plain statement of the grounds for the court’s jurisdiction”); Kanter v.
Warner-Lambert Co., 265 F.3d 853, 858 (9th Cir. 2001) (“Since the party asserting
diversity jurisdiction bears the burden of proof, [Defendant’s] failure to specify
Plaintiffs’ state citizenship was fatal to Defendants’ assertion of diversity
jurisdiction [in a notice of removal].”) (citation omitted). That is, Plaintiff has not
demonstrated complete diversity of citizenship in the Complaint.
The court nevertheless concludes that Plaintiff should be allowed an
opportunity to file an Amended Complaint in compliance with Rule 8 and that
states an arguable basis for federal jurisdiction. Plaintiff needs to allege, if
possible, that all Defendants are of different citizenship as Plaintiff for purposes of
28 U.S.C. § 1332. The court will therefore grant Plaintiff leave to file an Amended
Complaint that (1) complies with Rule 8’s requirement of “simple, concise, and
direct” allegations, and (2) contains a basis for federal subject matter jurisdiction.
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The court therefore DISMISSES the Complaint WITHOUT
PREJUDICE. This dismissal means that Plaintiff is granted leave to file an
Amended Complaint correcting the identified deficiencies. If Plaintiff chooses to
file an Amended Complaint, it must (1) comply with Rule 8’s requirement of
“simple, concise, and direct” factual allegations, and (2) contain a basis for federal
subject matter jurisdiction. An Amended Complaint:
(a)

(b)

must clearly state how each Defendant has injured
Plaintiff, or how the court can provide relief against each
Defendant. In other words, Plaintiff should explain, in
clear and concise allegations, what each Defendant did
(or failed to do) and how those specific facts create a
plausible claim for relief in reference to a specific statute
or common-law cause of action; and
must clearly state the relief sought and how there is basis
for a claim in federal court. In other words, Plaintiff
must explain the basis of this court’s jurisdiction

Plaintiff is also notified that any amended complaint supercedes the
prior complaint and must be complete in itself without reference to prior or
superceded pleadings. E.g., King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)
(citation omitted). That is, the Amended Complaint, if any, must stand alone,
without reference to prior pleadings or documents in the record.

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II. CONCLUSION
For the reasons stated above, the court GRANTS Plaintiff’s
Application, and DISMISSES the Complaint with leave to amend. Plaintiff is
given until June 24, 2011 to file an Amended Complaint. Failure to file an
Amended Complaint by June 24, 2011 will result in automatic dismissal of this
action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 2, 2011.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Spagnolo v. Nadic Network Certified Dentists, Civ. No. 11-00340 JMS/RPL, Order: (1) Granting
Plaintiff’s Application to Proceed Without Prepayment of Fees; and (2) Dismissing Complaint
with Leave to Amend

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