Opinion
1:21-cv-00810-EPG (PC)
05-21-2002
SILVESTRE RAEL, Plaintiff, v. ANDREW ZEPP, et al., Defendants.
ORDER FOR PLAINTIFF TO: 1) SUBMIT APPLICATION TO PROCEED IN FORMA PAUPERIS OR PAY FILING; OR 2) FILE NOTICE OF VOLUNTARY DISMISSAL
Plaintiff is a state prisoner proceeding pro se in this action. Plaintiff has not paid the $402.00 filing fee or submitted an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Additionally, it is not clear if Plaintiff intended to file this action in federal court. The coversheet and the caption of Plaintiff's complaint list the Superior Court of California, County of Kern. (ECF No. 1-1, p. 1; ECF No. 1, p. 4). Moreover, Plaintiff's only claim appears to be for professional negligence (a state law cause of action). Plaintiff has not pled any basis for federal jurisdiction and there does not appear to be any.
Plaintiff is currently incarcerated in Kern Valley State Prison and is suing individuals who work there. Thus, it appears that the Court does not have diversity jurisdiction. 28 U.S.C. § 1332(a)(1) (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between [] citizens of different States....”).Additionally, as it appears that Plaintiff is only asserting state law claims and as the Court does not have diversity jurisdiction, it appears that the Court does not have supplemental jurisdiction either. 28 U.S.C. § 1367(a) (“Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”).
If Plaintiff did not intend to file this action in federal court, he should file a notice of voluntary dismissal in this action and re-file the action in state court.
Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:
Within forty-five (45) days of the date of service of this order, plaintiff shall either: 1) submit the attached application to proceed in forma pauperis, completed and signed, or in the alternative, pay the $402.00 filing fee for this action; or 2) file a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
IT IS SO ORDERED.