United States District Court, D. Hawaii
ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. §
Oki Mollway United States District Judge.
the court is pro se Plaintiff Elijah Jackson, Jr.'s first
amended complaint (“FAC”), brought pursuant to 42
U.S.C. § 1983. ECF No. 5, at PageID #42. Jackson, who is
a Florida state prisoner, has submitted neither the civil
filing fee for commencing this action nor an in forma
pauperis (“IFP”) application. Jackson seeks
relief regarding injuries he claims that he incurred in an
automobile accident in Hawaii on or about March 19, 1985.
See FAC., ECF No. 5. Jackson states that he reached
a settlement in a prior suit regarding the accident, but he
now seeks additional damages. He asserts federal question
jurisdiction under 28 U.S.C. § 1331, although he
suggests diversity jurisdiction may be proper.
has accrued three strikes pursuant to 28 U.S.C. §
1915(g) and has had ample notice of these
strikes. He may not proceed without concurrent
payment of the filing fee unless his pleadings show that he
was in imminent danger of serious physical injury at the time
that he brought this action. See Andrews v.
Cervantes, 493 F.3d 1047, 1053, 1055 (9th Cir. 2007).
Nothing within the Complaint remotely suggests that Jackson
is or was in imminent danger of serious physical injury when
he filed this action, certainly not based on an automobile
accident that allegedly occurred thirty-four years ago. Nor
is there any allegation of a continuing practice that, having
injured him in the past and being related to his claims
against these Defendants, poses an “ongoing
danger” to him. Id. at 1056. Jackson may not
proceed in this action without concurrent payment of the
civil filing fee.
to the extent Jackson's claims make any sense, the court
lacks subject matter jurisdiction over them. See Deutsche
Bank Nat'l Tr. Co. for Harborview Mortg. Loan Tr. 2007 v.
Cutlip, 2017 WL 993073, at *2 (N.D. Cal. Mar. 15, 2017)
(explaining the difference between federal question and
diversity jurisdiction). To state a claim under § 1983,
a plaintiff must allege (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
asserts only state law tort claims, including negligence and
medical malpractice, and does not allege or explain how any
named Defendant was acting under color of state law. Even a
liberal construction of his claims does not reveal any basis
for federal question jurisdiction. See Grable & Sons
Metal Prod., Inc. v. Darue Eng'g & Mfg., 545
U.S. 308, 312 (2005) (“[F]ederal-question jurisdiction
is invoked by and large by plaintiffs pleading a cause of
action created by federal law (e.g., claims under 42 U.S.C.
there is no basis for diversity jurisdiction under 28 U.S.C.
§ 1332(a), because Jackson names several Defendants he
describes as citizens of Florida, where he is incarcerated.
Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 373-74 (1978) (“[D]iversity jurisdiction does not
exist unless each defendant is a citizen of a different State
from each plaintiff.”).
even if Jackson were able to pay the costs of this suit, this
court would lack subject matter jurisdiction to hear his
This action is DISMISSED without prejudice but without leave
to file any new action in this court with respect to these
claims and these Defendants.
July 15, 2019 Deficiency Order, ECF No. 3, is VACATED.
pending motions are DISMISSED. The court will take no action
on any documents filed hereafter, beyond processing a notice
Clerk of Court is DIRECTED to enter judgment and to close