Flowers v. Centennial Hills Hospital Medical Center

Filing 3

REPORT AND RECOMMENDATION Recommending to deny as moot 1 Motion/Application for Leave to Proceed in forma pauperis and to dismiss with prejudice Complaint. Objections to R&R due by 9/29/2017. Signed by Magistrate Judge Cam Ferenbach on 9/15/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 *** 3 4 RONNY FLOWERS, special administrator for Lee Von Day, deceased, 5 6 7 Case No. 2:17-cv-02343-JAD-VCF REPORT & RECOMMENDATION Plaintiff, vs. APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NO. 1) AND COMPLAINT (ECF NO. 1-1) CENTENNIAL HILLS HOSPITAL MEDICAL CENTER, 8 Defendant. 9 10 Before the Court are pro se Plaintiff Ronny Flowers’ application to proceed in forma pauperis 11 (ECF No. 1) and complaint (ECF No. 1-1). For the reasons stated below, the Court recommends that 12 Flowers’ complaint be dismissed with prejudice for lack of subject matter jurisdiction and Flowers’ in 13 forma pauperis application be dismissed as moot. 14 DISCUSSION 15 Federal courts have limited jurisdiction and are only able to hear cases authorized by the 16 17 18 Constitution and Congress. Polo v. Innoventions Int'l, LLC, 833 F.3d 1193, 1195-96 (9th Cir. 2016). The general bases for federal jurisdiction are (1) the action arises under federal law or that (2) all plaintiffs are 19 diverse in citizenship from all defendants and the amount in controversy exceeds $75,000. See 28 U.S.C. 20 §§ 1331, 1332. Under Fed. R. Civ. P. 12(h)(3), “[i]f the court determines at any time that it lacks subject- 21 matter jurisdiction, the court must dismiss the action.” 22 In this case, Flowers brings a personal injury claim against Centennial Hills Hospital Medical 23 Center. (ECF. No. 1-1). Flowers asserts that the Court has diversity jurisdiction over the case. (ECF No. 24 1-2). However, Flowers also states that he is a citizen of Nevada and Centennial Hills is a business 25 1 incorporated or with its principal place of business in Nevada. (Id.) Because Flowers and Centennial 1 2 Hills are both from Nevada, there is no diversity of citizenship. In addition, as this is a personal injury 3 case, there is no federal question at issue. Therefore, the Court lacks subject matter jurisdiction over this 4 case and the case should be dismissed with prejudice. 5 Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974) (“It has long been held that a judge can 6 dismiss sua sponte for lack of jurisdiction.”). Fed. R. Civ. P. 12(h)(3); Cat Diversified 7 ACCORDINGLY, 8 IT IS RECOMMENDED that Flowers’ complaint be DISMISSED with prejudice. (ECF No. 1- 9 10 1). IT IS FURTHER RECOMMENDED that Flowers’ application to proceed in forma pauperis be 11 DISMISSED as moot. (ECF No. 1). 12 13 14 NOTICE 15 16 Under Local Rule IB 3-2, any objection to this Report and Recommendation must be in writing 17 and filed with the Clerk of the Court within 14 days. The Supreme Court has held that the courts of appeal 18 may determine that an appeal has been waived due to the failure to file objections within the specified 19 20 21 time. (See Thomas v. Arn, 474 U.S. 140, 142 (1985)). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal factual issues from the order of the 22 District Court. (See Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 23 Dist., 708 F.2d 452, 454 (9th Cir. 1983)). 24 25 2 Pursuant to LSR 2-2, the Plaintiff must immediately file written notification with the court of any 1 2 3 change of address. The notification must include proof of service upon each opposing party or the party’s attorney. Failure to comply with this Rule may result in dismissal of the action. (See LSR 2-2). 4 IT IS SO RECOMMENDED. 5 DATED this 15th day of September, 2017. 6 _________________________ 7 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3

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