United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motion to
appoint counsel (Dkt. No. 2), motion for leave to amend
complaint (Dkt. No. 8), second motion for leave to amend
complaint (Dkt. No. 11) motion to show cause and correcting
complaint (Dkt. No. 12), and response to order to show cause
(Dkt. No. 13). Having thoroughly considered Plaintiff's
briefing and the relevant record, the Court hereby DENIES the
motions for the reasons explained herein and DISMISSES
Plaintiff's complaint without prejudice.
October 10, 2017, Plaintiff was granted in forma
pauperis status. (Dkt. No. 5.) This Court reviewed
Plaintiff's complaint under 28 U.S.C. § 1915(e)(2),
and ordered Plaintiff to show cause why his complaint should
not be dismissed for lack of subject matter jurisdiction.
(Dkt. No. 9.) Plaintiff responded to the Court's Order to
show cause and submitted an amended complaint. (Dkt. No. 13.)
Having reviewed the amended complaint, the Court finds that
it lacks subject matter jurisdiction over Plaintiff's
claim and dismisses the case without prejudice.
to 28 U.S.C. § 1915(e)(2)(B)(i), the Court must dismiss
a complaint filed in forma pauperis if it determines
the action “is frivolous or malicious.” A
complaint is considered frivolous under §
1915(e)(2)(B)(i) if it fails to properly allege subject
matter jurisdiction. Castillo v. Marshall, 107 F.3d
15 (9th Cir. 1997) (citation omitted). In his amended
complaint, Plaintiff alleges that jurisdiction is proper
under 28 U.S.C. § 1331. (Dkt. No. 13 at 1.) Federal
question jurisdiction exists where a plaintiff's claim
arises “under the Constitution, law, or treaties of the
United States.” 28 U.S.C. § 1331.
Plaintiff alleges a federal civil rights claim pursuant to 42
U.S.C. § 1983. (Dkt. No. 13 at 1.) Plaintiffs can bring
a civil lawsuit under § 1983 for violations of
constitutional rights. 42 U.S.C. § 1983. Generally, a
§ 1983 claim may only be maintained against a government
actor. See Richardson v. McKnight, 521 U.S. 399, 403
(1997). In some cases, a § 1983 claim can be maintained
against a private actor if he or she was acting “under
color” of a state or federal “statute, ordinance,
regulation, custom, or usage.” See id.; 42
U.S.C. § 1983.
neither alleges that his constitutional rights were violated
nor that Defendants are state actors. The named Defendants
are Aamaco Transmission Auto Car Care Repair, a car repair
shop in Seattle, and Glen Barnhart, the shop manager. (Dkt.
No. 13 at 1-2.) Plaintiff alleges that he left his car at
Defendant's shop after Barnhart agreed to repair the car.
(Id. at 2.) Plaintiff never received the car back
because while he was incarcerated in the King County Jail
Defendants allegedly caused the car to be towed and
eventually sold at an auction. (Id.)
does not plead any facts that explain how the transport and
sale of his car violated his constitutional rights. Nor does
he plead facts that demonstrate Defendants were state actors
or acting under color of state law. The Defendants are
clearly private actors. (Dkt. No. 13 at 2.) Plaintiff has not
made out a cognizable claim under 42 U.S.C. § 1983 and,
therefore, the Court does not have subject matter
jurisdiction under 28 U.S.C. § 1331.
Plaintiff plead facts that suggest the Court has subject
matter jurisdiction under 28 U.S.C. § 1332. Diversity of
citizenship jurisdiction exists where the amount at issue in
the lawsuit is more than $75, 000 and no plaintiffs or
defendants are citizens of the same state. See 28
U.S.C. § 1332(a); Bautista v. Pan Am. World
Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987).
Although Plaintiff's amended complaint asserts that he is
seeking $725, 000 in damages, all of the parties appear to
reside in and be citizens of Washington. (See Dkt.
No. 13 at 1-2.) Thus, the Court does not have subject matter
jurisdiction under 28 U.S.C. § 1332.
that Plaintiff's amended complaint fails to allege
subject matter jurisdiction, the Court construes his claim as
“frivolous” under § 1915(e)(2)(B)(i).
Accordingly, the Court DISMISSES Plaintiff's claim
without prejudice. The Court dismisses a claim with prejudice
only if the defect could not be corrected. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
foregoing reasons, Plaintiff's motion to appoint counsel
(Dkt. No. 2), motion for leave to amend complaint (Dkt. No.
8), second motion to amend complaint (Dkt. No. 11), and
response to the Court's order to show cause and
correcting complaint (Dkt. ...