Pellum v. Fresno Police Department

Filing 3

ORDER Granting Plaintiff's 2 Application to Proceed In Forma Pauperis; ORDER Dismissing Plaintiff's 1 Complaint with Leave to File a First Amended Complaint no later than thirty days after the date of service of this order signed by Magistrate Judge Sandra M. Snyder on 04/10/2009. Amended Complaint due by 5/18/2009. (Flores, E)

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 v. 13 14 15 16 17 Plaintiff is proceeding pro se with an action for damages 18 and other relief concerning alleged civil rights violations. The 19 matter has been referred to the Magistrate Judge pursuant to 28 20 U.S.C. § 636(b) and Local Rules 72-302 and 72-304. 21 I. Application to Proceed in Forma Pauperis 22 Plaintiff has submitted a declaration that makes the showing 23 required by § 1915(a). Accordingly, the request to proceed in 24 forma pauperis will be granted. 28 U.S.C. § 1915(a). 25 II. Screening the Complaint 26 A. Legal Standards 27 In cases wherein the plaintiff is proceeding in forma 28 1 FRESNO POLICE DEPARTMENT, et al., Defendants. JASON EVERETT PELLUM, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-00495-LJO-SMS ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (DOC. 2) ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO FILE A FIRST AMENDED COMPLAINT NO LATER THAN THIRTY DAYS AFTER THE DATE OF SERVICE OF THIS ORDER (DOC. 1)

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pauperis, the Court is required to screen cases and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. 1915(e)(2). Fed. R. Civ. P. 8(a) provides: A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Rule 8(a)'s simplified pleading standard applies to all civil

15 actions, with limited exceptions," none of which applies to 16 section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 17 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a 18 complaint must contain "a short and plain statement of the claim 19 showing that the pleader is entitled to relief...." Fed. R. Civ. 20 P. 8(a). "Such a statement must simply give the defendant fair 21 notice of what the plaintiff's claim is and the grounds upon 22 which it rests." Swierkiewicz, 534 U.S. at 512. However, "the 23 liberal pleading standard... applies only to a plaintiff's 24 factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 25 (1989). 26 In reviewing a complaint under this standard, the Court must 27 accept as true the allegations of the complaint in question, 28 2

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Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Although a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff does not meet his or her obligation to provide the grounds of entitlement to relief by supplying only conclusions, labels, or a formulaic recitation of the elements of a claim. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). Factual allegations must be sufficient, when viewed in light of common experience, to raise a right to relief above the speculative level and to provide plausible grounds to suggest and infer the element, or to raise a reasonable expectation that discovery will reveal evidence of the required element. Bell, 127 S.Ct. at 1965. Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations of the complaint, and it may not be dismissed based on a court's assessment that the plaintiff will fail to find evidence to support the allegations or prove the claim to the satisfaction of the finder of fact. Bell, 127 S.Ct. at 1969. If the Court determines that the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the Plaintiff cannot prevail on the 3

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facts that he has alleged and that an opportunity to amend would be futile. Lopez v. Smith, 203 F.3d at 1128. A claim is frivolous if it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A frivolous claim is based on an inarguable legal conclusion or a fanciful factual allegation. Id. A federal court may dismiss a claim as frivolous if it is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Id. The test for malice is a subjective one that requires the Court to determine whether the applicant is proceeding in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U.S. 43, 46 (1915); see Wright v. Newsome, 795 F.2d 964, 968 n. 1 (11th Cir. 1986). A lack of good faith is most commonly found in repetitive suits filed by plaintiffs who have used the advantage of costfree filing to file a multiplicity of suits. A complaint may be inferred to be malicious if it suggests an intent to vex the defendants or abuse the judicial process by relitigating claims decided in prior cases, Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C.Cir. 1981); if it threatens violence or contains disrespectful references to the Court, id.; or if it contains untrue material allegations of fact or false statements made with knowledge and an intent to deceive the Court, Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984). B. Plaintiff's Complaint Plaintiff alleges that the matters in question are the theft of property, the unwanted search of premises, and the destruction of personal property. Specifically, Plaintiff states that at an 4

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unspecified time, an unspecified child was five years old and was not supervised by a parent at the time of interrogation; the minor urinated on herself. Plaintiff further states that the child has been in child protective services' jurisdiction since February 2008. (Cmplt. p. 2.) Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support Plaintiff's claim. Id. Here, the Plaintiff's complaint is so general that the Defendant is not given sufficient notice of the basic factual details, such as time, place, participants, and circumstances, in order to give the Defendant fair notice of the claim. III. Amendment of the Complaint In summary, Plaintiff has failed to state a claim against any defendant upon which relief may be granted. The Court finds it necessary to dismiss the complaint in its entirety. However, it is possible that Plaintiff can allege a set of facts, consistent with the allegations, in support of the claim or claims that would entitle him to relief. Thus, the Court will grant Plaintiff an opportunity to amend the complaint to cure the deficiencies of this complaint. Failure to cure the deficiencies will result in dismissal of this action without leave to amend. A complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair 5

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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which specific defendants engaged in that support Plaintiff's claim. Id. An amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 15-220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. IV. Disposition Accordingly, it IS ORDERED that: 1) Plaintiff's application to proceed in forma pauperis IS GRANTED; and 2) Plaintiff's complaint IS DISMISSED with leave to amend; and 3) Plaintiff IS GRANTED thirty days from the date of service of this order to file an amended complaint that complies with the requirements of the pertinent substantive law, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "First Amended Complaint"; and 4) Plaintiff IS INFORMED that the failure to file an amended complaint in accordance with this order will be considered to be 6

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a failure to comply with an order of the Court pursuant to Local Rule 11-110 and will result in dismissal of this action. Further, failure to file an amended complaint that states a claim upon which relief may be granted will be considered to be grounds for dismissing the complaint pursuant to 28 U.S.C. § 1915(e)(2) and will result in dismissal of the action.

IT IS SO ORDERED. Dated: icido3 April 10, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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