Opinion
21-cv-03066-SK
05-18-2021
WILLIAM DAVID BUSH, Plaintiff, v. CLOVER STORNETTA INC., et al., Defendants.
ORDER TO REASSIGN CASE AND REPORT AND RECOMMENDATION FOR DISMISSAL REGARDING DOCKET NO. 5
SALLIE KIM, United States Magistrate Judge
On May 4, 2021, the Court issued a Screening Order granting Plaintiff's motion for leave to proceed in forma pauperis but ordering a hold on the service of the complaint because the Court found that it failed to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e). (Dkt. 4. ) The Court permitted Plaintiff to file an amended complaint no later than June 15, 2021, addressing the deficiencies described in the Screening Order. (Id.) Plaintiff filed an amended complaint on May 10, 2021. (Dkt. 5.) Defendants have not yet been served, therefore they have not appeared and have not consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636.
Having reviewed Plaintiff's amended complaint, the Court finds that it fails to address the deficiencies outlined in the Screening Order. In particular, the Court explained that the complaint did not establish a basis for jurisdiction because it did not meet the requirements for diversity jurisdiction or establish that a federal question existed on the face of the complaint. Plaintiff's complaint was originally based on 21 U.S.C. §§ 61-64, the Federal Filled Milk Act, which prohibits the manufacture and sale of certain filled milk products, but does not create a private cause of action allowing an ordinary citizen to bring suit against a defendant who allegedly violates the statute. Plaintiff's amended complaint does not set out additional facts tending to establish diversity jurisdiction. As to federal question jurisdiction, Plaintiff adds that he has “made many attempts to contact the Secretary of Health and Human Services” regarding this matter, and has received a response that “the issue had been forwarded to their internal Ombudsman for resolution.” (Dkt. 5.) Plaintiff contends that this response violates 5 U.S.C. § 552, the Freedom of Information Act (“FOIA”). (Id.) Any Department of Health and Human Services decision regarding how to handle Plaintiffs complaint about filled milk would not itself run afoul of FOIA, which regulates government agencies' disclosure of their internal information and processes, not the decisions themselves. Plaintiff does not claim that the Any Department of Health and Human Services failed to respond to any FOIA request. Plaintiffs amended complaint therefore does not establish any basis for this Court's jurisdiction.
For the foregoing reasons, the Court ORDERS that this matter be REASSIGNED to a District Judge and RECOMMENDS that the action be dismissed with prejudice. Any party may serve and file specific written objections to this recommendation within fourteen days of being served with a copy. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); Civil Local Rule 72-3.
IT IS SO ORDERED