Tucker v. Kwan

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RODNEY HOLT TUCKER, Case No.: 24-CV-1830 TWR (BJC) 12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, 14 BRIAN KWAN, M.D., and AND (2) DISMISSING COMPLAINT GABRIEL WARDI, M.D., 15 PURSUANT TO 28 U.S.C. § 1915 (e)(2) Defendants. [16] (ECF Nos. 1, 2) [17] 18 Presently before the Court are Plaintiff Rodney Holt Tucker’s Complaint for a Civil 19 Case (“Compl.,” ECF No. 1) against Defendants Brian Kwan, M.D., and Gabriel Wardi, 20 M.D., and Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or 21 Costs (“IFP Mot.,” ECF No. 2). Plaintiff generally alleges that Defendants failed to 22 provide him adequate medical treatment, (see generally Compl.), and therefore seeks $250 23 million in compensation for personal injury and medical malpractice. (See id. at 7 ; see also 24 ECF No. 1-1 (Civil Cover Sheet).) For the reasons discussed below, the Court GRANTS 25 Plaintiff’s IFP Motion but DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint 26 pursuant to 28 U.S.C. § 1915 (e)(2) for lack of subject-matter jurisdiction. 27 / / / 28 / / / 1 AMENDED MOTION TO PROCEED IN FORMA PAUPERIS 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for a writ of habeas corpus, must pay filing and 4 administration fees totaling $405.1 28 U.S.C. § 1914 (a). A court may, however, in its 5 discretion, allow a plaintiff to proceed without paying these fees if the plaintiff seeks leave 6 to proceed in forma pauperis (“IFP”) by submitting an affidavit demonstrating the fees 7 impose financial hardship. See 28 U.S.C. § 1915 (a); Escobeda v. Applebees, 787 F.3d 8 1226, 1234 (2015). Although the statute does not specify the qualifications for proceeding 9 IFP, the plaintiff’s affidavit must allege poverty with some particularity. Escobeda, 787 10 F.3d at 1234. Granting a plaintiff leave to proceed IFP may be proper, for example, when 11 the affidavit demonstrates that paying court costs will result in a plaintiff’s inability to 12 afford the “necessities of life.” Id. The affidavit, however, need not demonstrate that the 13 plaintiff is destitute. Id. 14 Here, Plaintiff’s amended affidavit indicates that he receives $569 per month in 15 public assistance, (see IFP Mot. at 2); spends $391 per month on food and clothing, (see 16 id. at 4); and is presently unhoused. (See id. at 5.) Because Plaintiff adequately 17 demonstrates that he cannot pay the $405 filing fee and still afford the necessities of life, 18 the Court GRANTS Plaintiff’s IFP Motion (ECF No. 2). 19 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915 (e)(2) 20 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915 (a) 21 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 22 may be granted,” or “seeks monetary relief against a defendant who is immune from relief.” [23] 28 U.S.C. § 1915 (e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 24 (“[T]he provisions of 28 U.S.C. § 1915 (e)(2)(B) are not limited to prisoners.”); Lopez v. [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $55. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave [28] 1 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915 (e) 2 “not only permits but requires a district court to dismiss an in forma pauperis complaint 3 that fails to state a claim”). As amended by the Prison Litigation Reform Act (“PLRA”), [4] 28 U.S.C. § 1915 (e)(2) mandates that the court reviewing an action filed pursuant to the 5 IFP provisions of section 1915 make and rule on its own motion to dismiss before directing 6 the Marshal to effect service pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. 7 R. Civ. P. 4(c)(3); Navarette v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 8 WL 139925 , at *1 (S.D. Cal. Jan. 9, 2013). 9 “Federal courts are courts of limited jurisdiction. They possess only that power 10 authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 11 U.S. 375 , 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction, 12 and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]” [13] Id. (first citing Turner v. Bank of N. Am., 4 U.S. 8, 11 (1799); then citing McNutt v. Gen. 14 Motors Acceptance Corp., 298 U.S. 178 , 182–83 (1936)). “If the court determines at any 15 time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. 16 Civ. P. 12(b)(3). 17 Here, Plaintiff alleges that the basis for this Court’s jurisdiction is that the U.S. 18 Government is a defendant. (See Compl. at 3.) Plaintiff also alleges, however, that 19 Defendants Drs. Kwan and Wardi are doctors who treated him at UCSD’s Emergency 20 Department in Hillcrest, (see id. at 2, 5), which is state rather than federal institution. See 21 Cal. Const. art. 9 § 9. The Court therefore does not have jurisdiction under 28 U.S.C. 22 § 1346. Nor does it appear that the Court would have jurisdiction under 28 U.S.C. §§ 1331 23 or 1332, which give federal courts “original jurisdiction of all civil actions arising under 24 the Constitution, laws, or treaties of the United States” and “all civil actions where the 25 matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens 26 of different States,” respectively. Regarding federal-question jurisdiction, although 27 Plaintiff indicates on his Civil Cover Sheet that the nature of this suit is for “Personal Injury 28 – Medical Malpractice” arising under the “Medicare Act,” (see ECF No. 1-1), “a private 1 ||cause of action does not exist under [the Medicare and Medicaid] Acts for medical 2 ||malpractice.” See Zuurveen ex rel. Zuurveen v. L.A. Cnty. Dep’t of Health Servs., No. CV 3 22-1912 JAK (PVC), 2022 WL 14966244 , at *5 (C.D. Cal. Sept. 28) (collecting cases), 4 ||report and recommendation adopted, 2022 WL 15173401 (C.D. Cal. Oct. 24, 2022). 5 || Further, “if [Plaintiff] was merely a patient who voluntarily sought medical care at a facility 6 happened to be operated by a local governmental agency ... , the hospital’s failure to 7 || provide adequate medical care does not implicate the federal constitution.” See id. at *6 . 8 ||As for diversity jurisdiction, Plaintiff concedes that he and defendants are citizens of 9 ||California such that there is no diversity of citizenship. (See ECF No. 1-1.) Even 10 construing Plaintiff's Complaint liberally, the Court can see no proper basis for exercise of 11 |/its limited jurisdiction here. 12 Although the Court is sympathetic to Plaintiff's medical condition and concerns, this 13 |}Court simply is not the proper forum for Plaintiff's Complaint. The Court therefore 14 || DISMISSES Plaintiff's Complaint (ECF No. 1) for lack of subject-matter jurisdiction 15 || pursuant to 28 U.S.C. § 1915 (e)(2) and Federal Rule of Civil Procedure 12(h)(3). 16 CONCLUSION 17 In light of the foregoing, the Court GRANTS Plaintiff's IFP Motion (ECF No. 2) 18 DISMISSES Plaintiff's Complaint pursuant to 28 U.S.C. § 1915 (e)(2)(B) for lack of 19 ||subject-matter jurisdiction WITHOUT LEAVE TO AMEND but WITHOUT 20 || PREJUDICE to Plaintiff refiling his claims in the Superior Court of California, County 21 San Diego. The Clerk of Court SHALL CLOSE the file. 22 IT IS SO ORDERED. 23 Dated: October 11, 2024 — 04 [59 14 bre 5 Honorable Todd W. Robinson United States District Judge