1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Ewa Adamek, No. CV-21-01335-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 Richard Gray, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s Application to Proceed in District Court 16 Without Prepaying Fees or Cost (Doc. 2). Upon review, Plaintiff’s Application, signed 17 under penalty of perjury, indicates that Plaintiff is financially unable to pay the filing fee. 18 The Court will grant Plaintiff’s Application and allow Plaintiff to proceed in forma 19 pauperis (“IFP”). Pursuant to 28 U.S.C. § 1915(e)(2), the Court will proceed to screen 20 Plaintiff’s Complaint (Doc. 1). 21 When a party has been granted IFP status, the Court must review the complaint to 22 determine whether the action: 23 (i) is frivolous or malicious; 24 (ii) fails to state a claim on which relief may be granted; or 25 (iii) seeks monetary relief against a defendant who is immune from such relief. 26 See 28 U.S.C. § 1915(e)(2)(B).1 In conducting this review, “section 1915(e) not only 27
28 1 “While much of § 1915 outlines how prisoners can file proceedings in forma pauperis, §1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners.” 1 permits but requires a district court to dismiss an [IFP] complaint that fails to state a claim.” 2 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citation omitted). 3 I. Jurisdiction 4 The Court must determine whether it has the power, or “subject-matter jurisdiction,” 5 to hear this case. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). If the Court does not 6 have the power to hear this case, then it must dismiss Plaintiff’s Complaint. See id. The 7 Court’s subject-matter jurisdiction is limited, and it can only hear two kinds of cases. See 8 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). First, it may hear 9 civil actions arising under federal causes of action, such as when a defendant is alleged to 10 have violated a federal law. 28 U.S.C. § 1331. This type of jurisdiction is called “federal- 11 question jurisdiction.” Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 12 308, 312 (2005). Second, it may hear civil actions in which the parties are from different 13 states and the amount in controversy is greater than $75,000. 28 U.S.C. § 1332. This is 14 called “diversity jurisdiction.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). 15 The Complaint does not show the Court has federal-question jurisdiction or 16 diversity jurisdiction. The Complaint is brought against Defendant Dr. Richard Gray, the 17 CEO of an Arizona hospital, and alleges that Plaintiff suffered several infections after 18 undergoing cancer-related surgery. (Doc. 1). Although the Complaint alleges that the 19 Court has federal question jurisdiction under 28 U.S.C. § 1331, (Id. at 3), Plaintiff’s 20 Complaint appears to bring a medical malpractice claim, which is a state cause of action. 21 See A.R.S. § 12-562. Although Plaintiff may bring this state claim before state court, she 22 may not do so here in federal court unless she also brings a federal claim. See 28 U.S.C. § 23 1331. In addition, the Court lacks diversity of citizenship jurisdiction because both 24 Plaintiff and Defendant are alleged to be citizens of the same state. See 28 U.S.C. § 1332.
25 Long v. Maricopa Cmty. College Dist., 2012 WL 588965, at *1 (D. Ariz. Feb. 22, 2012) 26 (citing Lopez v. Smith, 203 F.3d 1122, 1126 n. 7 (9th Cir. 2000) (“[S]ection 1915(e) applies to all in forma pauperis complaints[.]”); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 27 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”) 28 (citation omitted). Therefore, section 1915 applies to this non-prisoner IFP complaint. 1 Because the Court has no jurisdiction over this action, the Complaint fails to state a claim 2 this Court may hear and must be dismissed. Fed. R. Civ. P. 8(a)(1). 3 II. Leave to Amend 4 Unless it is “‘absolutely clear’ that [Plaintiff] could not cure [the Complaint’s] 5 deficiencies by amendment,” the Court will grant her the opportunity to do so. See Jackson 6 v. Barnes, 749 F.3d 755, 767 (9th Cir. 2014) (citations omitted); see also Lopez, 203 F.3d 7 at 1131 (en banc) (internal quotation marks and citations omitted) (holding that a pro se 8 litigant must be given leave to amend his complaint “if it appears at all possible that the 9 plaintiff can correct the defect” in the complaint); Fed. R. Civ. P. 15(a)(2) (leave to amend 10 should be “freely” given “when justice so requires[]”). 11 If Plaintiff believes she can amend her Complaint to show that the Court has 12 jurisdiction, then she may file an amended complaint within thirty (30) days from the date 13 of entry of this Order. Plaintiff must clearly designate on the face of the document that it 14 is the “First Amended Complaint.” This complaint must be retyped or rewritten in its 15 entirety and may not incorporate any part of the original Complaint by reference. If 16 Plaintiff files an amended complaint, she must take care to clearly state the grounds for 17 this Court’s jurisdiction, either by bringing a federal cause of action or by showing 18 how the Court may exercise its diversity jurisdiction. See Fed. R. Civ. P. 8(a)(1). 19 Plaintiff’s amended complaint should follow the form detailed in Rule 7.1 of the 20 Local Rules of Civil Procedure (“LRCiv”). Examples of different types of complaints 21 demonstrating the proper form can be found in the appendix of forms that is contained with 22 the Federal Rules of Civil Procedure (forms 11–21).2 Each claim or cause of action must 23 be set forth in a separate count. The Court recommends Plaintiff review the information 24 available in the District Court’s Handbook for Self-Represented Litigants, which is 25 available online.3 Plaintiff should also be aware that “an amended complaint supersedes
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Ewa Adamek, No. CV-21-01335-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 Richard Gray, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s Application to Proceed in District Court 16 Without Prepaying Fees or Cost (Doc. 2). Upon review, Plaintiff’s Application, signed 17 under penalty of perjury, indicates that Plaintiff is financially unable to pay the filing fee. 18 The Court will grant Plaintiff’s Application and allow Plaintiff to proceed in forma 19 pauperis (“IFP”). Pursuant to 28 U.S.C. § 1915(e)(2), the Court will proceed to screen 20 Plaintiff’s Complaint (Doc. 1). 21 When a party has been granted IFP status, the Court must review the complaint to 22 determine whether the action: 23 (i) is frivolous or malicious; 24 (ii) fails to state a claim on which relief may be granted; or 25 (iii) seeks monetary relief against a defendant who is immune from such relief. 26 See 28 U.S.C. § 1915(e)(2)(B).1 In conducting this review, “section 1915(e) not only 27
28 1 “While much of § 1915 outlines how prisoners can file proceedings in forma pauperis, §1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners.” 1 permits but requires a district court to dismiss an [IFP] complaint that fails to state a claim.” 2 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citation omitted). 3 I. Jurisdiction 4 The Court must determine whether it has the power, or “subject-matter jurisdiction,” 5 to hear this case. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). If the Court does not 6 have the power to hear this case, then it must dismiss Plaintiff’s Complaint. See id. The 7 Court’s subject-matter jurisdiction is limited, and it can only hear two kinds of cases. See 8 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). First, it may hear 9 civil actions arising under federal causes of action, such as when a defendant is alleged to 10 have violated a federal law. 28 U.S.C. § 1331. This type of jurisdiction is called “federal- 11 question jurisdiction.” Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 12 308, 312 (2005). Second, it may hear civil actions in which the parties are from different 13 states and the amount in controversy is greater than $75,000. 28 U.S.C. § 1332. This is 14 called “diversity jurisdiction.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). 15 The Complaint does not show the Court has federal-question jurisdiction or 16 diversity jurisdiction. The Complaint is brought against Defendant Dr. Richard Gray, the 17 CEO of an Arizona hospital, and alleges that Plaintiff suffered several infections after 18 undergoing cancer-related surgery. (Doc. 1). Although the Complaint alleges that the 19 Court has federal question jurisdiction under 28 U.S.C. § 1331, (Id. at 3), Plaintiff’s 20 Complaint appears to bring a medical malpractice claim, which is a state cause of action. 21 See A.R.S. § 12-562. Although Plaintiff may bring this state claim before state court, she 22 may not do so here in federal court unless she also brings a federal claim. See 28 U.S.C. § 23 1331. In addition, the Court lacks diversity of citizenship jurisdiction because both 24 Plaintiff and Defendant are alleged to be citizens of the same state. See 28 U.S.C. § 1332.
25 Long v. Maricopa Cmty. College Dist., 2012 WL 588965, at *1 (D. Ariz. Feb. 22, 2012) 26 (citing Lopez v. Smith, 203 F.3d 1122, 1126 n. 7 (9th Cir. 2000) (“[S]ection 1915(e) applies to all in forma pauperis complaints[.]”); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 27 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”) 28 (citation omitted). Therefore, section 1915 applies to this non-prisoner IFP complaint. 1 Because the Court has no jurisdiction over this action, the Complaint fails to state a claim 2 this Court may hear and must be dismissed. Fed. R. Civ. P. 8(a)(1). 3 II. Leave to Amend 4 Unless it is “‘absolutely clear’ that [Plaintiff] could not cure [the Complaint’s] 5 deficiencies by amendment,” the Court will grant her the opportunity to do so. See Jackson 6 v. Barnes, 749 F.3d 755, 767 (9th Cir. 2014) (citations omitted); see also Lopez, 203 F.3d 7 at 1131 (en banc) (internal quotation marks and citations omitted) (holding that a pro se 8 litigant must be given leave to amend his complaint “if it appears at all possible that the 9 plaintiff can correct the defect” in the complaint); Fed. R. Civ. P. 15(a)(2) (leave to amend 10 should be “freely” given “when justice so requires[]”). 11 If Plaintiff believes she can amend her Complaint to show that the Court has 12 jurisdiction, then she may file an amended complaint within thirty (30) days from the date 13 of entry of this Order. Plaintiff must clearly designate on the face of the document that it 14 is the “First Amended Complaint.” This complaint must be retyped or rewritten in its 15 entirety and may not incorporate any part of the original Complaint by reference. If 16 Plaintiff files an amended complaint, she must take care to clearly state the grounds for 17 this Court’s jurisdiction, either by bringing a federal cause of action or by showing 18 how the Court may exercise its diversity jurisdiction. See Fed. R. Civ. P. 8(a)(1). 19 Plaintiff’s amended complaint should follow the form detailed in Rule 7.1 of the 20 Local Rules of Civil Procedure (“LRCiv”). Examples of different types of complaints 21 demonstrating the proper form can be found in the appendix of forms that is contained with 22 the Federal Rules of Civil Procedure (forms 11–21).2 Each claim or cause of action must 23 be set forth in a separate count. The Court recommends Plaintiff review the information 24 available in the District Court’s Handbook for Self-Represented Litigants, which is 25 available online.3 Plaintiff should also be aware that “an amended complaint supersedes
26 2 Those forms as well as the Federal Rules of Civil Procedure and the Local Rules, as well as other information for individuals filing without an attorney may be found on the District 27 Court’s internet web page at www.azd.uscourts.gov/.
28 3 The Handbook may be found at http://www.azd.uscourts.gov/handbook-self-represented- litigants. 1 the original complaint and renders it without legal effect[.]” Lacey v. Maricopa County, 2 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Thus, after amendment, the Court will treat 3 an original complaint as nonexistent. Id. at 925. 4 III. Warning 5 Plaintiff is advised that if she elects to file an amended complaint but fails to comply 6 with the Court’s instructions explained in this Order, the action will be dismissed pursuant 7 to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure. 8 See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal with 9 prejudice of amended complaint that did not comply with Rule 8(a)). If Plaintiff fails to 10 prosecute this action, or if she fails to comply with the rules or any court order, the Court 11 may dismiss the action with prejudice pursuant to Rule 41(b) of the Federal Rule of Civil 12 Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Ghazali v. Moran, 13 46 F.3d 52, 54 (9th Cir. 1995). 14 Accordingly, 15 IT IS HEREBY ORDERED that the Application to Proceed in District Court 16 Without Prepaying Fees or Costs (Doc. 2) is GRANTED. 17 IT IS FURTHER ORDERED that Plaintiff’s Complaint (Doc. 1) is dismissed with 18 leave to file a First Amended Complaint within thirty (30) days of the date this Order is 19 entered. 20 IT IS FURTHER ORDERED that if Plaintiff does not file a First Amended 21 Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court shall 22 dismiss this action without further order of this Court; and 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IT IS FINALLY ORDERED that if Plaintiff elects to file a First Amended 2 || Complaint, it may not be served until and unless the Court issues an Order screening the || amended complaint pursuant to 28 U.S.C. § 1915(e)(2). 4 Dated this 3rd day of August, 2021. 5 6 fe □□ 7 norable' Dian¢gJ4. Hunfetewa g United States District Fudge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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