Sharit v. Stanislaus County Health Service Agency

Filing 7

ORDER GRANTING 2 Plaintiff's Motion to Proceed In Forma Pauperis and ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Barbara A. McAuliffe on 8/28/2013. Amended Complaint due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK JOSEPH SHARIT,
Plaintiff,

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ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS;

v.

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Case No. 1: 13-cv-01192-AWI-BAM

STANISLAUS COUNTY HEALTH
SERVICE AGENCY,

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ORDER DISMISSING PLAINTIFF’S
COMPLAINT WITH LEAVE TO AMEND

Defendant.

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/

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I.

Plaintiff’s Motion to Proceed In Forma Pauperis
On July 26, 2013, plaintiff Patrick Joseph Sharit (“Plaintiff”) a state prisoner appearing pro se,

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filed a motion to proceed in forma pauperis. (Doc. 2.) Having reviewed the in forma pauperis motion,

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this Court GRANTS Plaintiff’s motion.

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II.

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Screening Requirement
Currently pending before the Court is Plaintiff’s Complaint, filed July 26, 2013. (Doc. 1.) The

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Court is required to screen complaints brought by prisoners proceeding pro se and in forma pauperis.

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28 U.S.C. § 1915(e)(2). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief. Id. If the

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Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent

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that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122 (9th
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Cir. 2000) (en banc).
In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and

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plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

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"[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v.

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Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555, 127 S. Ct. 1955 (2007)).
To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th

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Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts

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that are merely consistent with a defendant's liability" falls short of satisfying the plausibility standard.

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Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

Plaintiff’s Complaint
On or about July 28, 2011, Plaintiff was seen by one or more doctors at the “Paradise Medical

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Clinic” for anxiety treatment. Plaintiff was prescribed several medications which Plaintiff alleges

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caused him to experience a “major psychotic episode” and engage in “criminal activities.” Plaintiff

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seeks damages in the amount of $3,000,000.00 “for loss of freedoms, emotional stress, pain and

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suffering, humiliation, and time incarcerated.”

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IV.

Discussion
Plaintiff’s Complaint Fails to Comply With Rule 8

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A.

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Plaintiff has not stated a claim on which relief may be granted. Generally, the Court is lenient

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and liberally construes pro se pleadings. Plaintiff’s Complaint, however, fails to articulate a single

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claim for relief and is so lacking in factual allegations that there is no discernible cause of action to be

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inferred. While the Court cannot completely discern what Plaintiff claims, it appears Plaintiff seeks to

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hold others responsible for his criminal activity. Plaintiff offers no factual or legal basis to legitimize

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such a claim. Accordingly, Plaintiff’s Complaint fails to provide “fair notice” of the claims being
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asserted and the “grounds upon which [they] rest.” Yamaguchi v. United States Dep't of the Air Force,

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109 F.3d 1475, 1481 (9th Cir.1997).

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The Court will dismiss Plaintiff’s Complaint because it fails to allege facts sufficient to state a

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claim upon which relief can be granted. The Court will provide Plaintiff with an additional

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.

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Plaintiff must revise his complaint to allege facts sufficient to support a cognizable claim. Plaintiff

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may not change the nature of this suit by adding new, unrelated claims in the first amended complaint.

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Plaintiff’s amended complaint should be brief, but must allege sufficient facts to establish his

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cause of action. Fed. R. Civ. P. 8(a). Plaintiff should focus on setting forth, as briefly but specifically

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as possible, the facts necessary to state a claim on which relief may be granted. Plaintiff must avoid

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including unnecessary language, as well as advocacy and argumentation. Plaintiff is advised that each

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amended complaint supercedes all prior complaints, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474

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(9th Cir. 1997), aff’d, 525 U.S. 299 (1999); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and

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must be “complete in itself without reference to the prior or superceded pleading.” Local Rule 220.

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“All causes of action alleged in an original complaint which are not alleged in an amended complaint

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are waived.” King, 814 F.2d at 567; accord Forsyth, 114 F.3d at 1474.
Plaintiff’s Complaint Fails to Establish Subject Matter Jurisdiction

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B.

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In order to state a claim in a United States District Court, Plaintiff must establish federal

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jurisdiction. Federal courts are courts of limited jurisdiction and lack inherent or general subject

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matter jurisdiction. Federal courts can adjudicate only those cases in which the United States

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Constitution and Congress authorize them to adjudicate. Kokkonen v. Guardian Life Ins. Co., 511 U.S.

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375, 114 S.Ct. 1673, 1677 (1994). Generally, these cases involve diversity of citizenship (in which the

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matter in controversy exceeds the sum or value of $75,000 and is between citizens of different states),

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or a federal question, or to which the United States is a party. 28 U.S.C. §§ 1331 and 1332; See also,

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Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 128 L. Ed. 2d 391 (1994); Finley v.

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United States, 490 U.S. 545, 109 S.Ct. 2003, 2008, 104 L. Ed. 2d 593 (1989).

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Federal courts are presumptively without jurisdiction over civil actions, and the burden to

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establish the contrary rests upon the party asserting jurisdiction. Kokkonen, 511 U.S. at 377; 114 S.Ct.

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at 1677. Lack of subject matter jurisdiction is never waived and may be raised by the court sua

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sponte. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-595 (9th Cir. 1996).

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“Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction is what its power

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rests upon. Without jurisdiction it is nothing.” In re Mooney, 841 F.2d 1003, 1006 (9th Cir.1988).

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Here, Plaintiff has failed to establish that federal jurisdiction exists as the United States is not a

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party in this action and no federal question is presented. Similarly, the complaint does not allege that

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the parties are citizens of different states.

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C.

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Plaintiff’s Complaint Fails to Allege Compliance With the California Tort Claims

The California Tort Claims Act requires that a tort claim against a public entity or its

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employees be presented to the California Victim Compensation and Government Claims Board,

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formerly known as the State Board of Control, no more than six months after the cause of action

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accrues. Cal. Gov’t. Code 905.2, 910, 911.2, 945.4, 950-950.2 (West 2010). Presentation of a written

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claim, and action on or rejection of the claim, are conditions precedent to suit. State v. Superior Court

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of Kings County (Bodde), 90 P.3d 116, 119 (Cal. 2004); Shirk v. Vista Unified School District, 42

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Cal.4th 201, 209 (2007). To state a tort claim against a public employee, a plaintiff must allege

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compliance with the California Tort Claims Act. Cal. Gov’t. Code 950.6; Bodde, 90 P.3d at 123.

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“[F]ailure to allege facts demonstrating or excusing compliance with the requirement subjects a

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compliant to general demurrer for failure to state a cause of action.” Bodde, 90 P.3d at 120.

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Plaintiff has not alleged any facts indicating he complied with the administrative requirements

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of the California Tort Claims Act.1 If Plaintiff chooses to amend his complaint he will need to allege

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facts sufficient to show he has complied with the requirements of the California Tort Claim Act.

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The Court recognizes that in City of Stockton v. Superior Court, 42 Cal.4th 730, 742 (Cal. 2007), California=s
Supreme Court adopted the practice of referring to California=s Tort Claims Act as the Government Claims Act. However,
given that the federal government has also enacted a Tort Claims Act, 28 U.S.C. ' 2671, the Court here refers to the
Government Claims Act as the California Tort Claims Act in an effort to avoid confusion.

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CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s complaint is dismissed with leave to amend for failure to state facts

sufficient to state a claim on which relief may be granted;
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Within thirty (30) days from the date of service of this order, Plaintiff shall file a

amended complaint curing the deficiencies identified by the Court in this order; and
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If Plaintiff fails to file an amended complaint within thirty (30) days from the date of

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service of this order, this action will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure

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to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 28, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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