(PS) Cardenas Flores v. Flores Ojeda, No. 2:2018cv02938 - Document 7 (E.D. Cal. 2019)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/9/19 STAYING all pleading, discovery, and motion practice in this action pending resolution of the findings and recommendations and RECOMMENDING that the action be Dismissed for lack of subject matter jurisdiction; that 6 Motion to Proceed in forma pauperis be Denied without prejudice as moot; and that the clerk be directed to close this case. Referred to Judge Kimberly J. Nunley. Objections due within 14 day after being served with these findings and recommendations. (Coll, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN LUIS CARDENAS FLORES No. 2:18-cv-2938-TLN-KJN PS 12 Plaintiff, 13 ORDER AND v. 14 FINDINGS AND RECOMMENDATIONS JOSE GUADALUPE FLORES OJEDA, 15 16 Defendant. 17 Plaintiff Juan Flores, who is incarcerated and proceeds without counsel, commenced this 18 19 action and requested leave to proceed in forma pauperis. (ECF Nos. 1, 2, 6.)1 A federal court has an independent duty to assess whether federal subject matter 20 21 jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. 22 Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty 23 to establish subject matter jurisdiction over the removed action sua sponte, whether the parties 24 raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). 25 The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject 26 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original 27 28 Upon a determination that plaintiff’s action does not challenge the conditions of his confinement, the action was re-designated as a regular pro se case. 1 1 1 jurisdiction over a civil action when: (1) a federal question is presented in an action “arising 2 under the Constitution, laws, or treaties of the United States;” or (2) there is complete diversity of 3 citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). 4 Liberally construed, plaintiff’s complaint alleges that, on May 19, 2018, he was physically 5 attacked by his cousin, defendant Jose Ojeda, resulting in plaintiff sustaining a fractured nose. 6 Plaintiff seeks $100,000.00 in damages for physical and emotional harm, as well as payment for 7 his medical treatment. 8 9 Although plaintiff’s complaint appears to state some type of battery or personal injury claim against defendant, such a claim would be a state law tort claim over which this court does 10 not have federal question jurisdiction. Nor does this court have diversity of citizenship 11 jurisdiction, because both plaintiff and defendant are residents of California. 12 Therefore, the court lacks subject matter jurisdiction over the action and recommends that 13 the case be dismissed. However, such dismissal should be without prejudice, allowing plaintiff to 14 pursue any potential claims in state court. 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 1. The action be dismissed without prejudice for lack of subject matter jurisdiction. 17 2. Plaintiff’s motion to proceed in forma pauperis in this court (ECF No. 6) be denied 18 without prejudice as moot. 19 3. The Clerk of Court be directed to close this case. 20 In light of those recommendations, IT IS ALSO ORDERED that all pleading, discovery, 21 and motion practice in this action are STAYED pending resolution of the findings and 22 recommendations. With the exception of objections to the findings and recommendations, and 23 non-frivolous motions for emergency relief, the court will not entertain or respond to any motions 24 or filings until the findings and recommendations are resolved. 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, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 2 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 2 shall be served on all parties and filed with the court within fourteen (14) days after service of the 3 objections. The parties are advised that failure to file objections within the specified time may 4 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 5 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 6 7 IT IS SO ORDERED AND RECOMMENDED. Dated: January 9, 2019 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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