Wheeler v. The US Department of Education et al

Filing 3

ORDER GRANTING Plaintiff's 2 Motion to Proceed in Forma Pauperis; ORDER DISMISSING Plaintiff's 1 Complaint With Leave to File an Amended Complaint No Later Than Thirty Days After the Date of Service of This Order, signed by Magistrate Judge Sandra M. Snyder on 10/29/2009. (Sondheim, M)

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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 The US Department of Education, et al., Defendants. JOHN FREDERICK WHEELER, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-01631-LJO-SMS ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (DOC. 2) ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO FILE AN 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 each case 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). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R.

Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to `state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949. Determining whether a complaint states a plausible claim for relief is generally a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. However, where the well-pleaded facts do not permit the 2

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court to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). A claim has facial plausibility,"when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ­ U.S. ­, 129 S.Ct. 1937, 1949 (2009). "[F]or a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009). 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 facts that he has alleged and that an opportunity to amend would be futile. Lopez v. Smith, 203 F.3d at 1128. B. Plaintiff's Complaint Plaintiff complains of letters or communications that Defendants Diversified Collection Services (DCS) and Van Ru Credit Corporation sent him concerning debts owed to unidentified creditors; however, Plaintiff later states that if he does not receive an apology and satisfaction from "THIS NOTICE" (an apparent reference to the complaint itself), he would file suit and ask for damages. (Cmplt. pp. 1-2.) Plaintiff later makes 3

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conclusional statements to the effect that the aforementioned Defendants, as well as the United States Department of Education, deprived Plaintiff of unspecified rights in violation of 42 U.S.C. § 1983. He states that the Department of Education threatened to collect a debt by attaching his Social Security benefits, and that he received documents from Defendant Van Ru concerning a loan application and that his civil rights have thereby been violated. Plaintiff's allegations are inconsistent, and it is unclear whether he intends his complaint as an operative legal document or whether his intention is to decide to sue or not upon learning the reaction of Defendants to his complaint. Further, there is a lack of clarity as to the delineation between events meant to be recited to Defendants and events which Plaintiff intends to form the basis of his complaint. Plaintiff will be given an opportunity to file an amended complaint in which to state specific facts constituting the conduct, and significant attendant circumstances, for which Plaintiff intends to seek relief. C. Leave to Amend In summary, the Court finds it necessary to dismiss the complaint in its entirety. Plaintiff has failed to state a cognizable claim against the defendants and has failed to plead facts demonstrating jurisdiction in this Court. 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 4

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this complaint. Failure to cure the deficiencies will result in dismissal of this action without leave to amend. Plaintiff is informed that the Court cannot refer to a prior pleading in order to make Plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once Plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. 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. III. 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 5

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be labeled "First Amended Complaint";

failure to file an amended

complaint in accordance with this order will be considered to be a failure to comply with an order of the Court pursuant to Local Rule 11-110 and will result in dismissal of this action.

IT IS SO ORDERED. Dated: icido3 October 29, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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