Unpublished Disposition, 911 F.2d 738 (9th Cir. 1987)

MEMORANDUM^** 

Appellants Robert, Craig, and Beverly Lauderdale appeal, pro se, the district court's order dismissing their complaint for lack of federal question jurisdiction, failure to state a claim, and for failure or seek affirmative relief against the State of California.¹  The Lauderdales brought this action against the State of California, the County of Alameda and the City of Hayward in connection with a delayed ambulance pick-up alleged to have caused the death of Beverly Lauderdale. The Lauderdales have submitted a variety of unusual documents, including an appellate brief resembling a complaint which, only if construed most liberally, can be read to contain contentions of error. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

We review de novo the dismissal of a complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1) or for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6). Kruso v. Int'l. Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 58 USLW 3801 (1990). Dismissal is proper where the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Love v. United States, 871 F.2d 1488, 1491 (9th Cir. 1989).

The Lauderdales included a copy of all three of their complaints in their brief. However, because an amended complaint supercedes an original, the Lauderdales have waived any errors in the ruling on their original complaints. Sacramento Coca-Cola Bottling Co., Inc. v. Chauffeurs, Teamsters and Helpers Local No. 150, 440 F.2d 1096, 1098 (9th Cir. 1971), cert. denied, 404 U.S. 826 (1971). Therefore, we are limited to reviewing the district court's ruling on the Lauderdales amended complaint filed June 15, 1987.

The amended complaint fails to allege federal question or diversity jurisdiction, and instead, asserts murder and conspiracy charges under 18 U.S.C. §§ 1111 and 1117. However, the district court read the complaint broadly and ruled on various potential bases of jurisdiction, including 28 U.S.C. § 1343, 42 U.S.C. § 1983 and diversity jurisdiction.

On appeal, the Lauderdales assert jurisdiction based on diversity of citizenship, citing to the fact that Beverly was a British subject granted permanent resident status in the United States. Robert and Craig Lauderdale are residents of California. The defendants are the State of California and two California cities. Because diversity does not exist where any plaintiff and any defendant reside in the same state the district court properly rejected this as a basis for jurisdiction. Munoz v. Small Business Administration, 644 F.2d 1361, 1365 (9th Cir. 1981).

The complaint also alleges that the defendants abridged Beverly's civil rights by causing her detriment and death by knowingly allowing poor ambulance services to continue. 28 U.S.C. § 1343 provides that district courts have original jurisdiction over civil actions to redress the deprivation under state law, statute, ordinance, regulation, custom or usage, of constitutional rights. 28 U.S.C. § 1343(a) (3). The district court properly noted that generally, litigants do not have standing to assert the rights of third parties who may have been injured by unlawful conduct. See TOPIC v. Circle Realty, 532 F.2d 1273, 1275 (9th Cir. 1976), cert. denied., 429 U.S. 859 (1976). A claim for deprivation of civil rights accruing before death survives a decedent where there is a state law providing for survival. Robertson v. Wegmann, 436 U.S. 584, 588-90 (1978); Smith v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir. 1987), cert. denied, 484 U.S. 935 (1987). California law provides that only the executor or administrator of a decedent's estate may bring a cause of action on its behalf. Cal.Prob. Code Sec. 573 (West Supp.1986). Accordingly, because Robert Lauderdale is not the executor or administrator of his wife's estate, he cannot assert a 28 U.S.C. § 1343 cause of action on her behalf.

The district court properly rejected any possible constitutional claim by the Lauderdales under 42 U.S.C. § 1983 that they were entitled to any particular level of ambulance service. The court also properly rejected the Lauderdale's attempt to file a civil action alleging a criminal violation. Criminal actions in district court must be brought by the United States Attorney. 28 U.S.C. § 547(1).

The district court afforded the Lauderdale's an earlier opportunity to amend their complaint, and they failed to assert a proper basis for jurisdiction. Because the district court had no jurisdiction over the Lauderdale's claim, and because they stated no claim upon which relief could be granted, the court did not err in dismissing the complaint with prejudice.

AFFIRMED.