Barton, Jr v. John Doe 1-6

Filing 11

ORDER dismissing Plaintiff's First Amended Complaint (Dkt. 10 ) with leave to amend ; Second Amended Complaint must be filed no later than Monday, 7/10/2017, signed by Judge James L. Robart. (SWT) (cc: Plaintiff via USPS)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

HERMAN L. BARTON, JR.,

11

CASE NO. C17-0608JLR

Plaintiff,

ORDER DISMISSING
COMPLAINT WITH LEAVE TO
AMEND

v.
12
JOHN DOES 1-6, et al.,

13

Defendants.

14
15

I.

INTRODUCTION

Before the court is Plaintiff Herman L. Barton, Jr.’s amended complaint against

16
17

Defendants John Does 1-6, Jane Does 1-6, and “Government Work Source” (collectively,

18

“Defendants”). (FAC (Dkt. # 10).) Mr. Barton is proceeding in forma pauperis (“IFP”)

19

and pro se. (See IFP Order (Dkt. # 8).) The court concludes that Mr. Barton fails to

20

adequately allege the court’s subject matter jurisdiction. Accordingly, the court

21

dismisses Mr. Barton’s complaint with leave to amend.

22

//

ORDER - 1

1

II.

BACKGROUND

2

On April 25, 2017, Mr. Barton filed this lawsuit (see Compl. (Dkt. # 1)), and on

3

May 2, 2017, he filed a motion for leave to proceed IFP (IFP Mots. (Dkt. ## 5, 7)). On

4

May 8, 2017, Magistrate Judge Theiler granted Mr. Barton’s IFP motion and

5

recommended review of Mr. Barton’s complaint under 28 U.S.C. § 1915(e)(2)(B). (IFP

6

Order at 1.)

7

In his first complaint, Mr. Barton alleged that the women who work at

8

Government Work Source invited him to use the service, but after a few days, some

9

unspecified men told him that he was committing “a criminal trespass.” (Compl. at 3.)

10

He further stated that he has “been invited to use Government Work Source more than 27

11

times [by] the women and at one time the women told the police that [he did] not

12

trespass[] and could use Government Work Source.” (Id.) Mr. Barton requested a jury

13

trial, an award of damages in the amount of $75,000.00, and the use of Government

14

Work Source. (Id. at 4.)
After reviewing Mr. Barton’s complaint, the court concluded that Mr. Barton’s

15
16

complaint was frivolous and failed to state a claim. (5/9/17 Order (Dkt. # 9) at 3.)

17

Specifically, the court determined that Mr. Barton failed to allege facts from which the

18

court could reasonably infer a basis for exercising subject matter jurisdiction (id.), and

19

because Mr. Barton’s complaint contained only conclusory allegations, the court could

20

not determine what claims Mr. Barton attempted to assert or identify facts in Mr.

21

Barton’s complaint from which the court could reasonably infer Defendants’ liability (id.

22

at 4).

ORDER - 2

1

The court granted Mr. Barton leave to amend his complaint and instructed Mr.

2

Barton that any amended complaint he filed must include a short and plain statement that

3

describes (1) the factual circumstances of the alleged harm, e.g., where and when it

4

occurred; (2) Defendants’ actions that give rise to Mr. Barton’s claims; (3) the basis for

5

the court’s jurisdiction; and (4) the relief Mr. Barton seeks. (Id. at 4-5 (citing Fed. R.

6

Civ. P. 8(a)(1)-(3).) Mr. Barton timely filed an amended complaint, which is now before

7

the court. (See FAC.)

8

III.

9

ANALYSIS

Title 28 U.S.C. § 1915(e)(2)(B) requires a district court to dismiss a claim filed

10

IFP if the court determines “at any time” that the action (1) is frivolous or malicious, (2)

11

fails to state a claim, or (3) seeks relief from a defendant who is immune from such

12

relief.1 See 28 U.S.C. § 1915(e)(2)(B); see also Deere v. Brown,

13

No. 11cv1579 WQH (JMA), 2012 WL 4740328, at *1 (S.D. Cal. Oct. 3, 2012) (noting

14

the mandatory nature of a district court’s screening function under Section 1915).

15

Moreover, “the court may raise the question of subject matter jurisdiction, sua sponte, at

16

any time during the pendency of the action.” Snell v. Cleveland, Inc., 316 F.3d 822, 826

17

(9th Cir. 2002). The court again concludes that Mr. Barton’s amended complaint fails to

18

adequately allege the court’s subject matter jurisdiction.

19

//

20
21
22

1

Although 28 U.S.C. § 1915 expressly addresses the filings of prisoner litigants, the
court must also screen the filings of non-prisoner civil litigants seeking to proceed IFP. Calhoun
v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam).

ORDER - 3

1

Even though the court must liberally construe pro se pleadings, Balistreri v.

2

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990), the plaintiff must nevertheless

3

plead facts supporting the court’s subject matter jurisdiction, see Simmons v. Revenue

4

Officers, 865 F. Supp. 678, 679 (D. Idaho 1994), and allege facts sufficient “to raise a

5

right to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

6

(2007). Although Federal Rule of Civil Procedure 8 does not require “detailed factual

7

allegations,” it demands more than “an unadorned, the-defendant-unlawfully-harmed-me

8

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

9

555).

10

Mr. Barton once again fails to state a basis for the court’s subject matter

11

jurisdiction or to allege facts from which the court can reasonably infer a basis for

12

exercising subject matter jurisdiction. (See generally FAC (failing to address the court’s

13

jurisdiction).) As the court previously indicated (see 5/9/17 Order), Federal Rule of Civil

14

Procedure 8(a) requires Mr. Barton to include “a short and plain statement of the grounds

15

for the court’s jurisdiction” in his complaint, Fed. R. Civ. P. 8(a). However, Mr. Barton

16

provides no information regarding the domicile of Defendants. See 28 U.S.C. § 1332(a);

17

Medina v. Chas Roberts Air Conditioning, Inc., No. CV 05-4214-PHX-SMM, 2006 WL

18

2091665, at *6 (D. Ariz. July 24, 2006) (citing Fifty Assocs. v. Prudential Life Ins. Co. of

19

Am., 446 F.2d 1187, 1191 (9th Cir. 1970)) (“The Ninth Circuit has rejected naming ‘Doe’

20

defendants in diversity actions, on the grounds that complete diversity cannot exist if the

21

identity and citizenship of some defendants (i.e., the ‘Does’) are unknown.”)); (FAC at 3

22

(seeking relief of $75,000.00 in damages and “use of Work Source”).) In addition, Mr.

ORDER - 4

1

Barton does not appear to assert any federal claims that support federal question

2

jurisdiction. See 28 U.S.C. § 1331; (FAC at 1-3 (failing to allege facts from which a

3

federal claim can be inferred from the face of the complaint).) Accordingly, Mr. Barton

4

once again fails to allege facts to establish the court’s subject matter jurisdiction.

5

The court must grant a pro se plaintiff leave to amend unless it is absolutely clear

6

that amendment could not cure the defects in the complaint. Lucas v. Dep’t of Corr., 66

7

F.3d 245, 248 (9th Cir. 1995). Accordingly, the court grants Mr. Barton leave to amend

8

his complaint to adequately state a basis for the court’s subject matter jurisdiction. Mr.

9

Barton must file his second amended complaint, if any, no later than Monday, July 10,

10

2017. In any amended complaint, Mr. Barton must state a basis for the court’s subject

11

matter jurisdiction or allege facts from which the court can reasonably infer a basis for

12

exercising subject matter jurisdiction. See Fed. R. Civ. P. 8(a); 28 U.S.C. § 1332(a); 28

13

U.S.C. § 1331; Medina, 2006 WL 2091665, at *6.

14

The court cautions Mr. Barton that a plaintiff does not enjoy unlimited

15

opportunities to amend his complaint, particularly when he fails to remedy pleading

16

deficiencies that the court has identified. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th

17

Cir. 1992) (affirming dismissal with prejudice where district court had instructed pro se

18

plaintiff regarding deficiencies in prior order dismissing claim with leave to amend);

19

Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (holding that

20

“[t]he district court’s discretion to deny leave to amend is particularly broad where

21

plaintiff has previously amended the complaint”); Webb v. Kaiser (Fremont),

22

No. 13-cv-04654 NC, 2014 WL 1616412, at *3 (N.D. Cal. Apr. 21, 2014) (dismissing

ORDER - 5

1

without further leave to amend where the plaintiff failed to remedy the deficiencies the

2

court previously identified with regard to subject matter jurisdiction); Razavi v. San Jose

3

Police, No. 5:17-cv-02088-EJD, 2017 WL 2117418, at *3 (N.D. Cal. May 16, 2017)

4

(same). Therefore, if Mr. Barton fails to remedy the deficiencies identified in this order

5

or to timely amend his complaint, the court will dismiss his complaint without further

6

leave to amend.

7
8
9
10
11

IV.

CONCLUSION

The court DISMISSES Mr. Barton’s first amended complaint (Dkt. # 10) with
leave to amend. Mr. Barton’s second amended complaint, if any, must be filed no later
than Monday, July 10, 2017.
Dated this 26th day of June, 2017.

12
13

A

14

JAMES L. ROBART
United States District Judge

15
16
17
18
19
20
21
22

ORDER - 6