Pettigrew v. Wilson et al
Filing
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ORDER that the Clerk of Court shall file the second amended complaint. The second amended complaint is Dismissed with leave to amend. Amended Complaint deadline: 3/27/2017. Signed by Magistrate Judge Nancy J. Koppe on 2/23/2017. (Copies have been distributed pursuant to the NEF - JM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DONNELLE PETTIGREW,
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Plaintiff is proceeding in this action pro se and requested authority pursuant to 28 U.S.C.
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§ 1915 to proceed in forma pauperis. Docket No. 1. On January 9, 2017, the Court denied
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Plaintiff’s application without prejudice. Docket No. 3. On January 11, 2017, Plaintiff submitted
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a renewed application, which the Court granted on January 17, 2017. Docket Nos. 4, 5. On January
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17, 2017, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915, and dismissed the
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complaint with leave to amend. Docket No. 5. The Court found that the complaint attempted to
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state a claim under 42 U.S.C. § 1983, but failed to allege that Defendants were state actors or acted
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under color of law. Id. at 3. The Court provided Plaintiff an opportunity to cure that defect. Id. at
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3-4. On February 13, 2017, Plaintiff filed an amended complaint that alleged various state law
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claims. Docket No. 7. On February 17, 2017, the Court dismissed Plaintiff’s amended complaint
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with leave to amend for failure to sufficiently allege subject matter jurisdiction. Docket No. 10.
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Plaintiff has now filed a second amended complaint. Docket No. 12.
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Plaintiff(s),
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vs.
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TOM WILSON, et al.,
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Defendant(s).
Case No. 2:16-cv-03012-APG-NJK
ORDER
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Upon granting a request to proceed in forma pauperis, a court must additionally screen a
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complaint pursuant to § 1915. Federal courts are given the authority to dismiss a case if the action
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is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When
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a court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the
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complaint with directions as to curing its deficiencies, unless it is clear from the face of the
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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d
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1103, 1106 (9th Cir. 1995).
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In addition, the Court has a duty to ensure that it has subject matter jurisdiction over the
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dispute before it. See, e.g., Fed. R. Civ. P. 12(h)(3). Federal courts are courts of limited jurisdiction
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and possess only that power authorized by the Constitution and statute. See Kokkonen v. Guardian
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Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994). “A federal court is presumed to lack jurisdiction in
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a particular case unless the contrary affirmatively appears.” Stock W., Inc. v. Confederated Tribes
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of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, federal subject matter
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jurisdiction must exist at the time the action is commenced. Mamigonian v. Biggs, 710 F.3d 936,
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942 (9th Cir.2013). Further, as Plaintiff is the party who invokes the Court’s jurisdiction, Plaintiff
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bears the burden of proving that the case is properly in federal court. McCauley v. Ford Motor Co.,
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264 F.3d 952, 957 (9th Cir. 2001) (internal citation omitted).
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While Plaintiff’s second amended complaint does not explicitly address subject matter
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jurisdiction, she appears to allege claims under a federal criminal statute, 18 U.S.C. § 1033, and
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under state law. Docket No. 12 at 3-4. Plaintiff also appears to request approximately $300,000 in
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damages. Id. at 5.
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Plaintiff’s second amended complaint again fails to sufficiently allege subject matter
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jurisdiction. The Court does not have federal question jurisdiction over this action because 18
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U.S.C. § 1033 is a criminal statute that does not provide a private right of action. See, e.g., Savini
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Constr. Co. v. Crooks Bros. Constr. Co., 540 F.2d 1355, 1358 (9th Cir. 1974) (courts may only infer
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private causes of action for damages from federal criminal statutes when “such inference is
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consistent with the evident legislative intent and . . . with the effectuation of the purposes intended
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to be served [by] the Act”) (internal citation omitted); Byrd v. Sand Canyon Corp., 2010 WL
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3942830, at *2 (E.D. Cal. Oct. 7, 2010) (rejecting claim under 18 U.S.C. § 1033 and noting that
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“private actions are maintainable under federal criminal statutes in only very limited circumstances”)
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(collecting cases)). Further, Plaintiff fails to allege the citizenship of any of the parties. See Docket
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No. 12. Thus, Plaintiff has failed to establish diversity of citizenship, which means she has failed
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to establish diversity jurisdiction. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1095 (9th Cir.
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2004); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). The Court
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allows plaintiff one final opportunity to demonstrate that this Court has subject matter jurisdiction
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over her case.
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Accordingly, IT IS ORDERED that:
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1.
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The Clerk of Court shall file the second amended complaint. The second amended
complaint is DISMISSED, with leave to amend.
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Plaintiff is granted leave to file a third amended complaint, if she believes she can
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cure the deficiencies noted above. If Plaintiff chooses to file a third amended
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complaint, she is advised that an amended complaint supersedes (replaces) the
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original complaint and, thus, the third amended complaint must be complete in itself.
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See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th
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Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint
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is irrelevant; an amended pleading supersedes the original”); see also Lacey v.
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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed
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with prejudice, a plaintiff is not required to reallege such claims in a subsequent
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amended complaint to preserve them for appeal).
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complaint must contain all claims, defendants, and factual allegations that Plaintiff
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wishes to pursue in this lawsuit.
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Plaintiff’s third amended
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3.
If Plaintiff chooses to file a third amended complaint curing the deficiencies, as
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outlined in this order, Plaintiff shall file the third amended complaint no later than
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March 27, 2017.
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4.
If Plaintiff chooses not to file a third amended complaint by the deadline, the
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undersigned will recommend dismissal of this case without prejudice. If Plaintiff
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timely files a third amended complaint, but the Court determines that it does not state
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any claims upon which relief may be granted and/or does not establish federal subject
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matter jurisdiction, the undersigned will recommend dismissal of this case without
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prejudice.
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IT IS SO ORDERED.
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DATED: February 23, 2017
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______________________________________
NANCY J. KOPPE
United States Magistrate Judge
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