White v. Kennedy et al, No. 1:2014cv01835 - Document 8 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action Without Leave to Amend; Fourteen Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 10/7/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 10/26/2015. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADRIAN JOE WHITE, 12 13 14 15 No. 1:14-cv-1835-AWI-BAM Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION WITHOUT LEAVE TO AMEND v. JOHNATHAN BETTIS RUSKOVISH, et al., FOURTEEN-DAY DEADLINE Defendants. 16 17 INTRODUCTION 18 Plaintiff Adrian Joe White (“Plaintiff”) a state prisoner, proceeds pro se and in forma 19 pauperis in this civil action. In his Second Amended Complaint (“SAC”), Plaintiff alleges that 20 Defendants Johnathan Bettis Ruskovish aka Joe Lopez, Liberty Mutual Insurance Company, and 21 Gregory A. Williams (“Defendants”) are liable to Plaintiff for a 2005 pedestrian involved car 22 accident. For the reasons set forth below, the Court recommends that this action be DISMISSED 23 with prejudice. 24 25 26 27 BACKGROUND Plaintiff alleges that on September 27, 2005, Defendant Ruskovish was using his cell phone when he hit Plaintiff with his truck. Plaintiff was dragged and suffered physical injuries. (SAC at 1.) After the accident, Plaintiff alleges that Defendants Ruskovish, Liberty Mutual Fire 28 1 1 and Insurance Company, and Liberty Insurance Agent Gregory A. Williams (“Defendants”) 2 conspired to deprive Plaintiff of his rightful compensation for injuries related to the accident. 3 Accordingly, Plaintiff’s SAC alleges that Defendants are “legally liable” and “responsible” for 4 Plaintiff’s medical bills and damages resulting from the car accident in the amount of 5 $750,000.00. (SAC at 1.) 6 SCREENING STANDARD 7 Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the 8 complaint for sufficiency to state a claim. Plaintiff’s complaint, or any portion thereof, is 9 therefore subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which 10 relief may be granted, or if it seeks monetary relief from a defendant who is immune from such 11 relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii). 12 A complaint must contain “a short and plain statement of the claim showing that the 13 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 14 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 16 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 17 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 18 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 19 (internal quotation marks and citation omitted). 20 To survive screening, Plaintiff’s claims must be facially plausible, which requires 21 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 22 for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); 23 Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility 24 that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short 25 of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks 26 omitted); Moss, 572 F.3d at 969. 27 28 DISCUSSION As an initial matter, the Court must determine whether it has the authority to consider the 2 1 claims alleged. Federal courts have no power to consider claims for which they lack subject- 2 matter jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); see also 3 Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006) (citing Kokkonen v. 4 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). The Court has an independent duty to 5 consider its own subject-matter jurisdiction, whether or not the issue is raised by the parties, Id., 6 and must dismiss an action over which it lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); see also Cal. 7 Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974) (“It has long been held 8 that a judge can dismiss sua sponte for lack of jurisdiction.”). Subject matter jurisdiction to hear a 9 plaintiff’s claim must either “arise under” federal law or be established by diversity jurisdiction. 10 28 U.S.C. §§ 1331 and 1332. The burden is on the federal plaintiff to allege facts establishing 11 that jurisdiction exists. 12 A. 13 Plaintiff alleges that his federal constitutional rights were violated when Defendants 14 Ruskovish, Liberty Mutual Fire and Insurance Company and Agent Gregory A. Williams 15 16 17 18 19 20 21 22 23 Plaintiff Fails to Plead a Cognizable Federal Claim conspired to deny Plaintiff compensation for his injuries. As the Court advised Plaintiff when it dismissed his original and first amended complaint, in order to state a claim for a federal civil rights violation under § 1983, Plaintiff must allege that (1) defendants deprived him of a right guaranteed under the Constitution or a federal statute, (2) while acting under color of state law. The ultimate issue in determining whether a person is subject to suit under a federal civil rights action is whether the alleged infringement of federal rights is fairly attributable to the government. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); see also Huffman v. Cty. of L.A., 147 F.3d 1054, 1057 (9th Cir. 1998) (holding that a defendant must have acted “under color of law” to be held liable under § 1983). Simply put, § 1983 “excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 24 526 U.S. 40, 50 (1999) (citations and internal quotations omitted). 25 26 27 Plaintiff’s personal injury claim against Defendants—who are private actors—does not allege a violation of Plaintiff’s constitutional rights. See West v. Atkins, 487 U.S. 42, 48 (1988). Moreover, a private individual generally does not act under the color of state law, which is an 28 3 1 essential element of a Section 1983 claim. See Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 2 1987); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (“Whether the actual 3 individual who inflicted the injuries acted under color of state law is often a threshold question. 4 Individuals do, indeed, have a right to be free from state violations of the constitutional 5 guarantees . . . Individuals, however, have no right to be free from the infliction of such harm by 6 private actors.”).1 7 entities—were acting under color of state law. Therefore, Plaintiff’s SAC does not contain any 8 allegation of a violation arising under the Constitution, laws, or treaties of the United States. 9 Accordingly, the Court lacks federal question jurisdiction. Despite repeated opportunities to 10 Plaintiff has not demonstrated that Defendants--private individuals and amend his complaint, Plaintiff has been unable to cure this deficiency. 11 B. 12 Subject matter jurisdiction to hear a federal Plaintiff’s state law claims may also be 13 established by diversity jurisdiction. 28 U.S.C. §§ 1331 and 1332. As noted above, there is no 14 cognizable federal claim to invoke the court’s federal question subject matter jurisdiction. Thus, 15 this Court must determine whether it has diversity jurisdiction to hear Plaintiff’s claims. Under 28 U.S.C. § 1332, federal district courts maintain original jurisdiction over all civil 16 17 18 19 20 21 actions where the matter in controversy exceeds $75,000 and is between “citizens of different States.” Here, Plaintiff alleges an amount in controversy of $750,000.00—an amount in excess of the statutory threshold. (Doc. 7 at 1.) Generally, “the sum claimed by the plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). However, Plaintiff’s complaint fails to establish complete diversity of citizenship between 22 23 Plaintiff Fails to Plead Complete Diversity Jurisdiction the parties. “Subject matter jurisdiction based upon diversity of citizenship requires that no defendant have the same citizenship as any plaintiff.” Tosco Corp. v. Communities for a Better 24 Env’t, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz 25 Corp. v. Friend, 559 U.S. 77 (2010) (emphasis added). Plaintiff has failed to allege the 26 1 27 28 The Ninth Circuit has held that private actors may act under the color of state law where they have assumed a public function, have taken joint action with the government, acted because of governmental compulsion or coercion, or share a nexus of common goals and ties with the government. See Kirtley v. Rainey, 326 F.3d 1088, 1092-95 (9th Cir. 2003). 4 1 citizenship of any of the parties. The Court finds that despite repeated opportunities, Plaintiff has 2 failed to establish complete diversity of citizenship. Further, Plaintiff appears to premise this 3 Court’s jurisdiction solely on federal question. (Doc. 7 at 3.) As discussed above, Plaintiff’s 4 action does not raise a federal question. 5 As the Court does not have subject matter jurisdiction, the Court must dismiss Plaintiff’s 6 claims for civil damages arising out of Plaintiff’s 2005 car accident. See Herman Family 7 Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001) (“[I]f the court dismisses for 8 lack of subject matter jurisdiction, it has no discretion and must dismiss all claims.”). 9 CONCLUSION AND RECOMMENDATION 10 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s complaint be 11 DISMISSED without further leave to amend based on Plaintiff’s failure to state a cognizable 12 federal claim and this Court’s lack of jurisdiction. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 15 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 16 file written objections with the Court. 17 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 18 objections within the specified time may result in the waiver of the “right to challenge the 19 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 20 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). The document should be captioned “Objections to 21 22 23 IT IS SO ORDERED. Dated: /s/ Barbara October 7, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 5
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