Keay v. Pizza Hut HQ
Filing
3
OPINION & ORDER: Granting Motion for Leave to Proceed in Forma Pauperis 1 .Plaintiffs Complaint 2 isdismissed. Plaintiff may file an amended complaint, curing the deficiencies noted above, within30 days of the date of this order. Plaintiff is advised that failure to file an amended complaint which cures the deficiencies noted shall result in the dismissal of this proceeding, with prejudice. ORDERED on 10/07/2016 by Judge Marco A. Hernandez. (ag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KEVIN M. KEAY,
No. 3:16-cv-1834-HZ
Plaintiff,
OPINION & ORDER
v.
PIZZA HUT HQ,
Defendant.
Kevin M. Keay
1240 SW Columbia
Portland, OR 97201
Plaintiff Pro Se
HERNÁNDEZ, District Judge:
Pro se plaintiff Kevin Keay brings this action against Pizza Hut HQ. Plaintiff moves to
proceed in forma pauperis. Because he has no appreciable income or assets, the Court grants the
motion. However, for the reasons explained below, the Court dismisses the Complaint.
1- OPINION & ORDER
STANDARDS
A complaint filed in forma pauperis may be dismissed at any time, including before
service of process, if the court determines that:
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.
28 U.S.C. § 1915(e)(2); see also Neitzke v. Williams, 490 U.S. 319, 324 (1989) (sua sponte
dismissals under section 1915 “spare prospective defendants the inconvenience and expense of
answering” complaints which are “frivolous, malicious, or repetitive”); Lopez v. Smith, 203 F.3d
1122, 1126 n.7 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not
just those filed by inmates). A complaint is frivolous “where it lacks an arguable basis in law or
in fact.” Neitzke, 490 U.S. at 325; Jackson v. State of Ariz., 885 F.2d 639, 640 (9th Cir. 1989).
As the Ninth Circuit has instructed however, courts must “continue to construe pro se
filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint filed
“‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id.
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). A pro se litigant will be given
leave to amend his or her complaint unless it is clear that the deficiencies of the complaint cannot
be cured by amendment. Lopez, 203 F.3d at 1130–31.
DISCUSSION
I.
Allegations
The entirety of Plaintiff’s complaint is as follows:
While in Taiwan teaching I got home late and ordered a tomatoe + cheese pizza it came
and first bite I took I broke teeth on chicken brest bones placed under the cheese (2005)
They sent me to a dentist who over days did 2 root canals and 2 filling. The did not pay
me for lost time or cost to fix now. I have lost all lower molars and cracks in all teeth
2- OPINION & ORDER
Compl. 1, ECF 2. Plaintiff indicates that both he and “Pizza Hut HQ” reside in Multnomah
County and they are both citizens of Oregon. Compl. 2. As to the nature of the suit, Plaintiff
marks checkboxes indicating that his action is one of personal injury/product liability and
disability discrimination. Id. Plaintiff also marks checkboxes indicating that the basis for federal
court jurisdiction is both “federal question” and “diversity.” Id.
II.
Jurisdiction
Federal courts are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 552 (2005). Federal jurisdiction may be based on the presence of a federal
question or on diversity of citizenship. 28 U.S.C. §§ 1331, 1332. Federal question jurisdiction
may exist where a claim involves the Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. For jurisdiction to exist by reason of diversity, the matter in controversy must
exceed the sum or value of $75,000, and the action must be between citizens of different states.
28 U.S.C. § 1332(a).
In his complaint, Plaintiff indicates that the basis for jurisdiction is “federal question” but
he cites no federal constitutional, statutory, or treaty right at issue in the case. Plaintiff marked
the box titled “Amer. w/Disabilities-Other.” Compl. 2. However, he provides no facts from
which the Court could identify or infer which federal question Plaintiff asserts or how his
complaint, as written, could be construed to state a claim of disability discrimination. The other
box checked by Plaintiff, “Personal Injury-Product Liability,” similarly does not present a federal
question.
As to diversity jurisdiction, Plaintiff alleges that both he and Defendant are citizens of
Oregon. Thus, to the extent Plaintiff seeks damages for state law or tort claims, this court lacks
3- OPINION & ORDER
jurisdiction to hear those claims because complete diversity among all parties is not present. See
Exxon Mobile Corp., 545 U.S. at 552.
Accordingly, this Court lacks subject matter jurisdiction over Plaintiff’s Complaint, and
must therefore dismiss the Complaint. See Fed.R.Civ.P. 12(h)(3) (court is required to dismiss an
action if the court determines that it lacks subject matter jurisdiction); Scholastic Entm’t, Inc. v.
Fox Entm’t Group, Inc., 336 F.3d 982, 985 (9th Cir. 2003).
CONCLUSION
Plaintiff’s motion to proceed in forma pauperis [1] is granted. Plaintiff’s Complaint [2] is
dismissed. Plaintiff may file an amended complaint, curing the deficiencies noted above, within
30 days of the date of this order. Plaintiff is advised that failure to file an amended complaint
which cures the deficiencies noted shall result in the dismissal of this proceeding, with prejudice.
IT IS SO ORDERED.
Dated this __________________ day of October, 2016.
__________________________________________
MARCO A. HERNÁNDEZ
United States District Judge
4- OPINION & ORDER
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