1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Arturo Barrera, No. CV 21-01658 PHX CDB
10 Plaintiff, REPORT AND RECOMMENDATION 11 v.
12 Honor Health Emergency Center – Deer Valley, 13 Defendant. 14
15 16 TO THE HONORABLE STEPHEN M. McNAMEE: 17 Plaintiff, who proceeds pro se, has filed a motion seeking leave to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915(a). (ECF No. 2).1 Accordingly, his 19 Complaint is subject to sua sponte review, and the Complaint is also subject to 20 mandatory dismissal if it is “frivolous, malicious,” or fails to state a claim upon which 21 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). See also Coleman v. Tollefson, 135 S.
22 1 Granting or denying a motion to proceed in forma pauperis is a matter left to the 23 Court’s discretion. See, e.g., Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998). Such a motion may be granted when the plaintiff has established their indigency and docketed a 24 complaint which presents at least one nonfrivolous claim. See, e.g., Smith-Bey v. Hospital Adm’r, 841 F.2d 751, 756-57 (7th Cir. 1988). When a non-prisoner seeks leave to proceed on a civil 25 complaint without the prepayment of fees pursuant to 28 U.S.C. § 1915, the applicant is required 26 to submit an affidavit that sets forth his income and assets and attests to the applicant’s inability to pay the requisite fees. See 28 U.S.C. § 1915(a). Plaintiff alleges he has no income and no 27 assets. Accordingly, Plaintiff has established that he lacks the financial ability to pay the filing fee. 28 1 Ct. 1759, 1763 (2015). Section 1915(e) “not only permits, but requires, a district court to 2 dismiss an in forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 203 3 F.3d 1122, 1127 (9th Cir. 2000). 4 Because upon screening it appears the Court is without jurisdiction to hear 5 Plaintiff’s claims for relief, a decision on the motion to proceed in forma pauperis is 6 dispositive. Accordingly, the undersigned makes the following proposed findings of fact, 7 report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, 8 Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), 9 Local Rules of Civil Procedure. 10 Screening under § 1915(e)(2) is performed under the same standard of review as 11 Federal Rule of Civil Procedure 12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121 12 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, 13 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 14 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 15 A complaint that fails to allege a cognizable legal theory or alleges insufficient facts 16 under a cognizable legal theory fails to state a plausible claim for relief. See UMG 17 Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013). The 18 Court must liberally construe a pro se plaintiff’s pleadings. E.g., Hebbe v. Pliler, 627 19 F.3d 338, 342 (9th Cir. 2010). However, although the Court must accept as true 20 allegations of material fact, it is “not bound to accept as true a legal conclusion couched 21 as a factual allegation.” Wood v. Moss, 572 U.S. 744, 755 n.5 (2014). 22 To be allowed to proceed on a complaint, the plaintiff must establish the Court’s 23 jurisdiction over their claim(s). A plaintiff may establish the Court’s subject matter 24 jurisdiction in one of two ways. First, the plaintiff may assert that the defendant violated 25 the Constitution, a federal law, or treaty of the United States, i.e., the Court’s “federal 26 question” jurisdiction. See 28 U.S.C. § 1331. Alternatively, a plaintiff may invoke the 27 Court’s “diversity” jurisdiction, which applies “where the matter in controversy exceeds 28 1 the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of 2 different States.” 28 U.S.C. § 1332(a)(1). 3 Plaintiff asserts the Court has federal question jurisdiction over his claims, citing 4 only 22 U.S.C. § 2702. (ECF No. 1 at 3). The factual basis for Plaintiff’s claim is as 5 follows:
6 On 9/20/21, and 9/24/21, respectively, I went to the Honor Health Emergency Center – Deer Valley and complained of extreme pain because I 7 was drugged, tortured, and raped. The medical staff are involved in a 8 sophisticated ongoing conspiracy, which constitutes a criminal terrorist organization to deprive me of my rights, and they refused to treat me. 9 10 (ECF No. 2 at 4). 11 In his prayer for relief, Plaintiff states:
12 I am seeking monetary damages (unspecified) and criminal sanctions, if at all possible. I am seeking an injunctive order for the emergency room to 13 operate on my left clavicle and for a blood toxocology [sic] exam and an entire Ct-scan and MRI of my entire body because I am a victim of a 14 complex conspiracy and I am being tortured an[d] the doctors/hospital is 15 refusing to do the imaging of my soft tissue and nerves. 16 (Id.). 17 The Complaint fails to establish the Court’s subject-matter jurisdiction. Section 18 2702 pertains to actions for malpractice purportedly committed by physicians who work 19 for the United States Department of State or any other federal department, agency, or 20 instrumentality. See 22 U.S.C. § 2702(a). There is no indication in the Complaint, nor 21 could it plausibly allege, that the “medical staff” of Honor Health work for the 22 Department of State or any other federal department, agency or instrumentality. Plaintiff 23 also fails to satisfy the requirements for subject matter jurisdiction on the basis of 24 diversity of citizenship, as the sole named defendant is an entity located and presumably 25 incorporated in Arizona and Plaintiff is a resident of Arizona. 26 If a pro se plaintiff can cure the factual allegations in their complaint to sustain a 27 finding of subject matter jurisdiction, the Court may give them leave to do so. However, 28 if repleading cannot cure the deficiencies, the Court may dismiss a complaint 1 accompanied by a motion to proceed in forma pauperis with prejudice. See Cato v. 2 United States, 70 F.3d 1103, 1106 (9th Cir. 2005); Eminence Capital, LLC v.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Arturo Barrera, No. CV 21-01658 PHX CDB
10 Plaintiff, REPORT AND RECOMMENDATION 11 v.
12 Honor Health Emergency Center – Deer Valley, 13 Defendant. 14
15 16 TO THE HONORABLE STEPHEN M. McNAMEE: 17 Plaintiff, who proceeds pro se, has filed a motion seeking leave to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915(a). (ECF No. 2).1 Accordingly, his 19 Complaint is subject to sua sponte review, and the Complaint is also subject to 20 mandatory dismissal if it is “frivolous, malicious,” or fails to state a claim upon which 21 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). See also Coleman v. Tollefson, 135 S.
22 1 Granting or denying a motion to proceed in forma pauperis is a matter left to the 23 Court’s discretion. See, e.g., Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998). Such a motion may be granted when the plaintiff has established their indigency and docketed a 24 complaint which presents at least one nonfrivolous claim. See, e.g., Smith-Bey v. Hospital Adm’r, 841 F.2d 751, 756-57 (7th Cir. 1988). When a non-prisoner seeks leave to proceed on a civil 25 complaint without the prepayment of fees pursuant to 28 U.S.C. § 1915, the applicant is required 26 to submit an affidavit that sets forth his income and assets and attests to the applicant’s inability to pay the requisite fees. See 28 U.S.C. § 1915(a). Plaintiff alleges he has no income and no 27 assets. Accordingly, Plaintiff has established that he lacks the financial ability to pay the filing fee. 28 1 Ct. 1759, 1763 (2015). Section 1915(e) “not only permits, but requires, a district court to 2 dismiss an in forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 203 3 F.3d 1122, 1127 (9th Cir. 2000). 4 Because upon screening it appears the Court is without jurisdiction to hear 5 Plaintiff’s claims for relief, a decision on the motion to proceed in forma pauperis is 6 dispositive. Accordingly, the undersigned makes the following proposed findings of fact, 7 report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, 8 Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), 9 Local Rules of Civil Procedure. 10 Screening under § 1915(e)(2) is performed under the same standard of review as 11 Federal Rule of Civil Procedure 12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121 12 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, 13 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 14 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 15 A complaint that fails to allege a cognizable legal theory or alleges insufficient facts 16 under a cognizable legal theory fails to state a plausible claim for relief. See UMG 17 Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013). The 18 Court must liberally construe a pro se plaintiff’s pleadings. E.g., Hebbe v. Pliler, 627 19 F.3d 338, 342 (9th Cir. 2010). However, although the Court must accept as true 20 allegations of material fact, it is “not bound to accept as true a legal conclusion couched 21 as a factual allegation.” Wood v. Moss, 572 U.S. 744, 755 n.5 (2014). 22 To be allowed to proceed on a complaint, the plaintiff must establish the Court’s 23 jurisdiction over their claim(s). A plaintiff may establish the Court’s subject matter 24 jurisdiction in one of two ways. First, the plaintiff may assert that the defendant violated 25 the Constitution, a federal law, or treaty of the United States, i.e., the Court’s “federal 26 question” jurisdiction. See 28 U.S.C. § 1331. Alternatively, a plaintiff may invoke the 27 Court’s “diversity” jurisdiction, which applies “where the matter in controversy exceeds 28 1 the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of 2 different States.” 28 U.S.C. § 1332(a)(1). 3 Plaintiff asserts the Court has federal question jurisdiction over his claims, citing 4 only 22 U.S.C. § 2702. (ECF No. 1 at 3). The factual basis for Plaintiff’s claim is as 5 follows:
6 On 9/20/21, and 9/24/21, respectively, I went to the Honor Health Emergency Center – Deer Valley and complained of extreme pain because I 7 was drugged, tortured, and raped. The medical staff are involved in a 8 sophisticated ongoing conspiracy, which constitutes a criminal terrorist organization to deprive me of my rights, and they refused to treat me. 9 10 (ECF No. 2 at 4). 11 In his prayer for relief, Plaintiff states:
12 I am seeking monetary damages (unspecified) and criminal sanctions, if at all possible. I am seeking an injunctive order for the emergency room to 13 operate on my left clavicle and for a blood toxocology [sic] exam and an entire Ct-scan and MRI of my entire body because I am a victim of a 14 complex conspiracy and I am being tortured an[d] the doctors/hospital is 15 refusing to do the imaging of my soft tissue and nerves. 16 (Id.). 17 The Complaint fails to establish the Court’s subject-matter jurisdiction. Section 18 2702 pertains to actions for malpractice purportedly committed by physicians who work 19 for the United States Department of State or any other federal department, agency, or 20 instrumentality. See 22 U.S.C. § 2702(a). There is no indication in the Complaint, nor 21 could it plausibly allege, that the “medical staff” of Honor Health work for the 22 Department of State or any other federal department, agency or instrumentality. Plaintiff 23 also fails to satisfy the requirements for subject matter jurisdiction on the basis of 24 diversity of citizenship, as the sole named defendant is an entity located and presumably 25 incorporated in Arizona and Plaintiff is a resident of Arizona. 26 If a pro se plaintiff can cure the factual allegations in their complaint to sustain a 27 finding of subject matter jurisdiction, the Court may give them leave to do so. However, 28 if repleading cannot cure the deficiencies, the Court may dismiss a complaint 1 accompanied by a motion to proceed in forma pauperis with prejudice. See Cato v. 2 United States, 70 F.3d 1103, 1106 (9th Cir. 2005); Eminence Capital, LLC v. Aspeon, 3 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); Lopez, 203 F.3d at 1129. Because Plaintiff is 4 unable to allege a proper basis for the Court’s jurisdiction over his claims against a 5 private Arizona hospital for the failure to treat Plaintiff’s non-life threatening injuries, 6 IT IS THEREFORE RECOMMENDED that Plaintiff’s complaint be 7 dismissed with prejudice for failure to allege subject matter jurisdiction. 8 IT IS FURTHER RECOMMENDED that Plaintiff’s motion for leave to 9 proceed in forma pauperis, and his motions at ECF No. 5 and ECF No. 6 be denied as 10 moot. 11 This recommendation is not an order that is immediately appealable to the Ninth 12 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 13 Rules of Appellate Procedure should not be filed until entry of the District Court’s 14 judgment. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have 15 fourteen (14) days from the date of service of a copy of this recommendation within 16 which to file specific written objections with the Court. Thereafter, the parties have 17 fourteen (14) days within which to file a response to the objections. Pursuant to 18 Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the 19 District of Arizona, objections to the Report and Recommendation may not exceed ten 20 (10) pages in length. 21 22 // 23 24 // 25 26 // 27 28 // 1 Failure to file timely objections to the Magistrate Judge’s Report and 2| Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 4) 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the 5 | Magistrate Judge may be considered a waiver of a party’s right to appellate review of the 6| findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s 7 | recommendation. See Fed. R. Civ. P. 72. 8 Dated this 5th day of October, 2021. 9 . Le _ 10 / ) ff 1 f) tb } JP
12 Camille D. Bibles 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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