(PS) Gonzalez v. Jamshidi et al, No. 2:2015cv01825 - Document 3 (E.D. Cal. 2015)
Court Description: ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/06/15 ORDERING that the 2 Motion to Proceed IFP is GRANTED and RECOMMENDING that the action be dismissed without prejudice and the case closed; referred to Judge Troy L. Nunley; Objections to these F&Rs due within 14 days. (Benson, A)
Download PDF
<![CDATA[
(PS) Gonzalez v. Jamshidi et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL MARIN GONZALEZ, 12 13 14 15 No. 2:15-cv-1825 TLN GGH PS Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS JAVAD JAMSHIDI, et al., Defendants. 16 17 Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma 18 pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 19 302(21), pursuant to 28 U.S.C. § 636(b)(1). 20 21 22 Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted. The determination that plaintiff may proceed in forma pauperis does not complete the 23 required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at 24 any time if it determines the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 26 an immune defendant. 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Dockets.Justia.com 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 5 Cir. 1989); Franklin, 745 F.2d at 1227. 6 A complaint must contain more than a “formulaic recitation of the elements of a cause of 7 action;” it must contain factual allegations sufficient to “raise a right to relief above the 8 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 9 “The pleading must contain something more...than...a statement of facts that merely creates a 10 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 11 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 12 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 13 v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 14 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows 15 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 16 Id. 17 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 18 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). 19 Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff 20 proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. 21 See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. 22 The complaint alleges that plaintiff visited defendant Dr. Jamshidi’s office, Stockton MRI 23 and Molecular Imaging Medical Center on July 19, 2011 for purposes of obtaining an MRI of his 24 right shoulder. He claims defendants lied about the results of the MRI by omitting injuries to his 25 shoulder, which damaged his workers’ compensation claim. Plaintiff claims that in fact this MRI 26 reflects two tears in his shoulder, as confirmed by a different physician. Plaintiff asked 27 defendants to correct the MRI findings but they failed to do so. Plaintiff seeks damages for state 28 law violations, including medical malpractice, [unidentified] code § 1871.4(a)(4), and Cal. Lab. 2 1 Code §§ 132. 4600, 4650, and 5401. The complaint also alleges that defendants are guilty of a 2 “major felony” under [unidentified] code § 5432. 3 First, the court is unable to determine a jurisdictional basis for this action. A federal court 4 is a court of limited jurisdiction, and may adjudicate only those cases authorized by the 5 Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 6 S. Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1 provides that the judicial power of the United 7 States is vested in the Supreme Court, “and in such inferior Courts as the Congress may from 8 time to time ordain and establish.” Congress therefore confers jurisdiction upon federal district 9 courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697- 10 99, 112 S. Ct. 2206, 2212 (1992). Lack of subject matter jurisdiction may be raised at any time 11 by either party or by the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93 12 F.3d 593, 594-95 (9th Cir. 1996). 13 The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal 14 question” and “diversity” jurisdiction, respectively. Statutes which regulate specific subject 15 matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J. 16 Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible 17 assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v. 18 Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1945). A federal claim which is so insubstantial as 19 to be patently without merit cannot serve as the basis for federal jurisdiction. See Hagans v. 20 Lavine, 415 U.S. 528, 537-38, 94 S. Ct. 1372, 1379-80 (1974). 21 For diversity jurisdiction pursuant to 28 U.S.C. § 1332, each plaintiff’s state citizenship 22 must be diverse from each defendant, and the amount in controversy must exceed $75,000. For 23 federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise 24 under a federal law or the United States Constitution, (2) allege a “case or controversy” within the 25 meaning of Article III, section 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 26 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962). 27 Diversity jurisdiction appears to be lacking as both plaintiff and defendants appear to be 28 citizens of California. Moreover, the complaint fails to allege a violation of a federal statute or 3 1 the constitution. All of plaintiff’s claims arise under state law only. Claims of medical 2 malpractice and state labor code violations, such as those stated here, do not create federal subject 3 matter jurisdiction. Plaintiff may be best advised to pursue his action in state court. 4 Second, plaintiff has no standing to pursue alleged violations of state criminal law. 5 Criminal statutes do not provide a private right of action. See, e.g., Ellis v. City of San Diego, 176 6 F.3d 1183, 1189 (9th Cir.1999) (district court properly dismissed claims brought under the 7 California Penal Code because the statutes do not create enforceable individual rights). Criminal 8 statutes do no give rise to civil liability. Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th 9 Cir. 2006). Similarly, when a criminal statute is violated, the question of whether to prosecute 10 and what criminal charges to file are decisions that generally rest in the discretion of the 11 prosecutor, not the court. United States v. Batchelder, 442 U.S. 114, 124 (1979). Accordingly, 12 insofar as plaintiff alleges criminal conduct by defendants, he cannot sue to prosecute these 13 criminal acts, or compel the state or federal government to investigate or prosecute these alleged 14 crimes. Therefore, plaintiff may not pursue such claims under these state criminal statutes. 15 Although the court would ordinarily grant a pro se plaintiff leave to amend, it does not 16 appear that the above-mentioned defects can be cured by more detailed factual allegations or 17 revision of plaintiff’s claims. This court simply has no jurisdiction for state law claims or for 18 civil prosecution of criminal violations by private citizens under the facts of this case. 19 Accordingly, leave to amend would be futile and the action should be dismissed with prejudice. 20 In accordance with the above, IT IS HEREBY ORDERED that: 21 1. Plaintiff's request for leave to proceed in forma pauperis is granted. 22 IT IS ALSO HEREBY RECOMMENDED that: 23 1. The action be dismissed without prejudice, and 24 2. The case be closed. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 27 days after being served with these findings and recommendations, plaintiff may file written 28 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 4 1 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 2 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 3 F.2d 1153 (9th Cir. 1991). 4 Dated: October 6, 2015 5 /s/ Gregory G. Hollows 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 GGH:076/Gonzalez1825.fr 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
