1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 DESHANA BARNER, Case No. 2:24-cv-02309-JAD-NJK
7 Plaintiff(s), ORDER 8 v. [Docket No. 4, 6] 9 CENTENNIAL HILLS HOSPITAL, et al., 10 Defendant(s). 11 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 12 28 U.S.C. § 1915 to proceed in forma pauperis. 13 I. In Forma Pauperis Application 14 Plaintiff filed an application to proceed in forma pauperis as required by § 1915(a). Docket 15 No. 6. Although a close question,1 Plaintiff has therein shown an inability to prepay fees and costs 16 or give security for them. Accordingly, the application to proceed in forma pauperis (Docket No. 17 6) will be granted pursuant to 28 U.S.C. § 1915(a). 18 II. Screening the Complaint 19 Upon granting an application to proceed in forma pauperis, courts additionally screen the 20 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 21 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 22 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 23 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 24 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 25 1 The Court has some concern as to whether the financial support provided by the father of 26 Plaintiff’s child may negate her ability to proceed in forma pauperis. See Docket No. 6 at 3; see also Flores v. Colvin, 2014 U.S. Dist. LEXIS 93236, at *3-4 (D. Nev. May 22, 2014) (explaining 27 that the in forma pauperis analysis evaluates the income and assets to which the plaintiff has access, including those of a spouse). Given the specific wording used in the application, however, 28 the Court will allow Plaintiff to proceed in forma pauperis. 1 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 2 F.3d 1103, 1106 (9th Cir. 1995). 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 4 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 5 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 6 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 7 showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. 8 Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, 9 it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 10 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 11 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 12 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. 13 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 14 not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from 15 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 16 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted 17 by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 18 construction of pro se pleadings is required after Twombly and Iqbal). 19 In addition, the Court has a duty to ensure that it has subject matter jurisdiction over the 20 dispute before it. Fed. R. Civ. P. 12(h)(3). Federal courts have limited jurisdiction and possess 21 only that power authorized by the Constitution and statute. See Kokkonen v. Guardian Life Ins. 22 Co. Of Am., 511 U.S. 375, 377 (1994). Under the well-pleaded complaint rule, “federal jurisdiction 23 exists only when a federal question is presented on the face of the plaintiff’s properly pleaded 24 complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).2 “[M]ere reference of a federal 25 statute in a pleading will not convert a state law claim into a federal cause of action if the federal 26 statute is not a necessary element of the state law claim and no preemption exists.” Newtok Village 27
28 2 Plaintiff’s complaint does not allege diversity jurisdiction. See Docket No. 1-2 at 1. 1 v. Patrick, 21 F.4th 608, 617 (9th Cir. 2021) (quoting Easton v. Crossland Mortg. Corp., 114 F.3d 2 979, 982 (9th Cir. 1997) (per curiam)). A cause of action “arises under” federal law “only if federal 3 law ‘creates the cause of action’ or a ‘substantial question of federal law is a necessary element’ 4 of a plaintiff’s well-pleaded complaint.” Coeur d’Alene Tribe v. Hawks, 933 F.3d 1052, 1055 (9th 5 Cir. 2019) (quoting Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 6 1376, 1383 (9th Cir. 1988)). Plaintiff bears the burden of proving that the case is properly in 7 federal court. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001) (citing McNutt v. 8 General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). 9 Plaintiff’s complaint does not sufficiently allege federal question subject matter 10 jurisdiction. The complaint alleges that medical records generated with respect to a 2018 11 procedure wrongly indicate that a stent was placed. Docket No. 1-2 at 3. Plaintiff also alleges that 12 she attempted unsuccessfully to correct that error. See id. at 4. Plaintiff’s complaint seeks to raise 13 a claim under Nevada state law for negligent infliction of emotional distress. See id. at 5. The 14 complaint references elsewhere that “Defendant”3 failed to amend Plaintiff’s medical records 15 consistent with 45 C.F.R. § 164.526. Docket No. 1-2 at 4; see also id. at 1. That administrative 16 provision outlines procedures for amending medical records, but it does not create a private right 17 of action. See, e.g., Bondick v. Sanchez, 2024 WL 1093053, at *3 (D. Ore. Mar. 13, 2024).
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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 DESHANA BARNER, Case No. 2:24-cv-02309-JAD-NJK
7 Plaintiff(s), ORDER 8 v. [Docket No. 4, 6] 9 CENTENNIAL HILLS HOSPITAL, et al., 10 Defendant(s). 11 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 12 28 U.S.C. § 1915 to proceed in forma pauperis. 13 I. In Forma Pauperis Application 14 Plaintiff filed an application to proceed in forma pauperis as required by § 1915(a). Docket 15 No. 6. Although a close question,1 Plaintiff has therein shown an inability to prepay fees and costs 16 or give security for them. Accordingly, the application to proceed in forma pauperis (Docket No. 17 6) will be granted pursuant to 28 U.S.C. § 1915(a). 18 II. Screening the Complaint 19 Upon granting an application to proceed in forma pauperis, courts additionally screen the 20 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 21 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 22 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 23 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 24 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 25 1 The Court has some concern as to whether the financial support provided by the father of 26 Plaintiff’s child may negate her ability to proceed in forma pauperis. See Docket No. 6 at 3; see also Flores v. Colvin, 2014 U.S. Dist. LEXIS 93236, at *3-4 (D. Nev. May 22, 2014) (explaining 27 that the in forma pauperis analysis evaluates the income and assets to which the plaintiff has access, including those of a spouse). Given the specific wording used in the application, however, 28 the Court will allow Plaintiff to proceed in forma pauperis. 1 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 2 F.3d 1103, 1106 (9th Cir. 1995). 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 4 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 5 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 6 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 7 showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. 8 Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, 9 it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 10 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 11 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 12 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. 13 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 14 not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from 15 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 16 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted 17 by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 18 construction of pro se pleadings is required after Twombly and Iqbal). 19 In addition, the Court has a duty to ensure that it has subject matter jurisdiction over the 20 dispute before it. Fed. R. Civ. P. 12(h)(3). Federal courts have limited jurisdiction and possess 21 only that power authorized by the Constitution and statute. See Kokkonen v. Guardian Life Ins. 22 Co. Of Am., 511 U.S. 375, 377 (1994). Under the well-pleaded complaint rule, “federal jurisdiction 23 exists only when a federal question is presented on the face of the plaintiff’s properly pleaded 24 complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).2 “[M]ere reference of a federal 25 statute in a pleading will not convert a state law claim into a federal cause of action if the federal 26 statute is not a necessary element of the state law claim and no preemption exists.” Newtok Village 27
28 2 Plaintiff’s complaint does not allege diversity jurisdiction. See Docket No. 1-2 at 1. 1 v. Patrick, 21 F.4th 608, 617 (9th Cir. 2021) (quoting Easton v. Crossland Mortg. Corp., 114 F.3d 2 979, 982 (9th Cir. 1997) (per curiam)). A cause of action “arises under” federal law “only if federal 3 law ‘creates the cause of action’ or a ‘substantial question of federal law is a necessary element’ 4 of a plaintiff’s well-pleaded complaint.” Coeur d’Alene Tribe v. Hawks, 933 F.3d 1052, 1055 (9th 5 Cir. 2019) (quoting Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 6 1376, 1383 (9th Cir. 1988)). Plaintiff bears the burden of proving that the case is properly in 7 federal court. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001) (citing McNutt v. 8 General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). 9 Plaintiff’s complaint does not sufficiently allege federal question subject matter 10 jurisdiction. The complaint alleges that medical records generated with respect to a 2018 11 procedure wrongly indicate that a stent was placed. Docket No. 1-2 at 3. Plaintiff also alleges that 12 she attempted unsuccessfully to correct that error. See id. at 4. Plaintiff’s complaint seeks to raise 13 a claim under Nevada state law for negligent infliction of emotional distress. See id. at 5. The 14 complaint references elsewhere that “Defendant”3 failed to amend Plaintiff’s medical records 15 consistent with 45 C.F.R. § 164.526. Docket No. 1-2 at 4; see also id. at 1. That administrative 16 provision outlines procedures for amending medical records, but it does not create a private right 17 of action. See, e.g., Bondick v. Sanchez, 2024 WL 1093053, at *3 (D. Ore. Mar. 13, 2024). 18 Moreover, it is not clear from the complaint how this federal administrative provision would 19 otherwise create a federal question on which subject matter jurisdiction can be premised in this 20 case. Cf. Webb v. Smart Doc. Sols., LLC, 499 F.3d 1078, 1082-83 (9th Cir. 2007) (explaining that 21 “HIPAA itself does not provide for a private right of action” and that federal question jurisdiction 22 23 24 25 26 27 3 There are two Defendants in this case, so it is not clear to which “Defendant” this 28 allegation relates. 1 did not exist for case involving state law claims based on alleged HIPAA violations regarding 2 medical records).4 3 Accordingly, Plaintiff’s complaint must be dismissed. Plaintiff is afforded an opportunity 4 to file an amended complaint if the deficiencies identified above can be corrected.5 5 III. Conclusion 6 Accordingly, IT IS ORDERED that: 7 1. Plaintiff’s application to proceed in forma pauperis (Docket No. 6) is GRANTED. 8 Plaintiff shall not be required to pay the filing fee. Plaintiff is permitted to maintain 9 this action to conclusion without the necessity of prepayment of any additional fees or 10 costs or the giving of a security therefor. This order granting leave to proceed in forma 11 pauperis shall not extend to the issuance and/or service of subpoenas at government 12 expense. 13 2. Plaintiff’s earlier application to proceed in forma pauperis (Docket No. 4) is DENIED 14 as moot. 15 3. The Clerk’s Office is INSTRUCTED to file the complaint (Docket No. 1-2) on the 16 docket. 17 4. Plaintiff’s complaint is DISMISSED with leave to amend. Plaintiff will have until 18 January 10, 2025, to file an amended complaint, if the noted deficiencies can be 19 corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed that the 20 Court cannot refer to a prior pleading (i.e., the original complaint) in order to make an 21 amended complaint complete. This is because, as a general rule, an amended complaint 22 4 Plaintiff cites other federal provisions that do not provide a basis on which to premise 23 federal question subject matter jurisdiction. See Docket No. 1-2 at 1. The complaint cites 18 U.S.C. § 1035, which is a criminal provision related to false statements regarding health care under 24 which Plaintiff cannot bring a private right of action. See, e.g., Castenada v. Cnty. of San Bernardino, 2024 WL 4224000, at *11 (C.D. Cal. Apr. 10, 2024). The complaint cites 28 U.S.C. 25 § 1367, which provides for supplemental jurisdiction, but supplemental jurisdiction applies for state law claims only when there is already original jurisdiction, see 28 U.S.C. § 1367(a). The 26 complaint also cites to 28 U.S.C. § 1391, but that is a venue statute. 27 5 Because of the threshold deficiency as to subject matter jurisdiction, the undersigned will not herein otherwise screen the sufficiency of the allegations in the complaint to state a claim or 28 to comply with the requirements of Rule 8. ] supersedes earlier pleadings. Local Rule 15-1(a) requires that an amended complaint 2 be complete in itself without reference to any prior pleading. Once a plaintiff files an 3 amended complaint, the earlier pleadings no longer serve any function in the case. 4 Therefore, in an amended complaint, each claim and the involvement of each defendant 5 must be sufficiently alleged. 6 5. Failure to file an amended complaint by the deadline set above will result in the 7 recommended dismissal of this case. 8 IT IS SO ORDERED. 9 Dated: December 17, 2024
Nancy J. Koppe 1] United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28