Gabaldon v. United Health Care et al

Filing 5

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker dismissing case without prejudice and denying as moot 2 MOTION to Proceed under 28 U.S.C. 1915. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID A. GABALDON,
Plaintiff,
v.

No. 17cv146 JAP/LF

UNITED HEALTH CARE and
UNITED STATES CENTER FOR
MEDICARE & MEDICAID SERVICES,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
On February 1, 2017, Plaintiff, acting pro se, filed a Complaint, Doc. 1, and an Application
to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2. (“Application”). The Court
will DISMISS this case without prejudice and DENY Plaintiff’s Application as moot.
Plaintiff names two Defendants, United Health Care and the United States Center for
Medicare & Medicaid Services. This case arises from Plaintiff’s trips to a hospital, pharmacies
and his primary care physician in January 2017. As best as the Court can tell from the Complaint,
the only allegations against Defendant United Health Care are: (i) it did not provide Plaintiff with
a ride home from the hospital; and (ii) Plaintiff experienced problems using his United Health Care
card to fill prescriptions.

The only allegation that might be construed as a claim against

Defendant United States Center for Medicare & Medicaid Services is: “Medicaid/Medicare does
not cover these type of medication.” Complaint at 4.
As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”). Plaintiff’s Complaint

does not contain “a short and plain statement of the grounds for the court’s jurisdiction” as
required by Rule 8(a)(1) of the Federal Rules of Civil Procedure.
The Court does not have jurisdiction over this matter. See Evitt v. Durland, 243 F.3d 388
*2 (10th Cir. 2000) (“even if the parties do not raise the question themselves, it is our duty to
address the apparent lack of jurisdiction sua sponte”) (quoting Tuck v. United Servs. Auto. Ass'n,
859 F.2d 842, 843 (10th Cir.1988). Plaintiff resides in New Mexico. Although he does not
specify the citizenship of Defendants, he gave an address for Defendant United Health Care on a
street in Albuquerque, New Mexico.

Consequently, there is no properly alleged diversity

jurisdiction. Nor is there any properly alleged federal question jurisdiction because there are no
allegations that this action arises under the Constitution, laws, or treaties of the United States.
The Court will dismiss the Complaint without prejudice for lack of jurisdiction. See Fed.
R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action”); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th
Cir.2006) (“[D]ismissals for lack of jurisdiction should be without prejudice because the court,
having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition
on the merits of the underlying claims.”).
IT IS ORDERED that this case is DISMISSED without prejudice.
IT IS ALSO ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed February 1, 2017, is DENIED as moot.

__________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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