Opinion
3:18-cv-2136-JR
01-24-2019
MINISTER TIMOTHY LUTHER MCNAIR, Plaintiff, v. KAI LYNN HARRIS or KAI LYNN ELLIOT, Defendant.
FINDINGS & RECOMMENDATION :
Plaintiff initiated this action on December 13, 2018. On December 17, 2018, after granting plaintiff in forma pauperis status, this court noted deficiencies in the complaint and dismissed it with leave to amend (doc. 4). On January 2, 2019, plaintiff filed an amended complaint that is virtually identical to the dismissed complaint. Compare Complaint (doc. 2) with Amended Complaint (Doc. 6).
This court noted the original complaint was deficient regarding allegations supporting federal question jurisdiction. This court further noted the complaint alleged that all parties are citizens of the same state thus negating diversity jurisdiction. This court specifically listed the elements necessary to assert a federal cause of action for a civil rights violation. Plaintiff's amended complaint fails to allege the capacity in which defendant acted when allegedly violating plaintiff's rights, or otherwise how defendant was acting under color of law. Accordingly, plaintiff again fails to allege this court has subject matter jurisdiction to hear his claims. See 28 U.S.C. § 1331 (federal courts have original jurisdiction of all civil actions arising under the Constitution and laws of the United States); 28 U.S.C. § 1332 (federal courts have original jurisdiction in civil actions where the amount in controversy exceeds $75,000 and the action lies between citizens of different states).
It is now clear the complaint's deficiencies cannot be cured by amendment and dismissal without further leave to amend is appropriate. Cf. Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987) (where pro se plaintiff failed to allege that the defendant acted under color of state law, the court need point out only that the complaint fails to state a claim because it fails to allege facts sufficient to show that the defendant acted under color of state law).
CONCLUSION
This action should be dismissed. A judgment of dismissal should be entered.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 24th day of January 2019.
/s/ Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge