Meeker v. California State Parole Office et al

Filing 9

ORDER GRANTING Plaintiff's Motion to Proceed In Forma Pauperis; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 4/26/2015. Amended Complaint due within 21 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID MEEKER,

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Plaintiff,

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v.
CALIFORNIA STATE PAROLE OFFICE
and AGENT BEARD,

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Defendants.

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Case No.: 1:14-cv-01953 - LJO - JLT
ORDER GRANTING PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS AND
DISMISSING THE COMPLAINT WITH LEAVE
TO AMEND

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David Meeker initiated this action by filing a complaint against the California State Parole

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Office and Parole Agent Beard, alleging the defendants are liable for violations of the “POC”1 and

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Americans with Disabilities Act. (Doc. 1.) For the following reasons, Plaintiff’s motion to proceed in

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forma pauperis is GRANTED. However, because Plaintiff fails to allege facts sufficient to support his

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claims for relief, his complaint is DISMISSED with leave to amend.

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I.

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Motion to Proceed In Forma Pauperis
As a general rule, all parties instituting any civil action, suit or proceeding in a United States

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District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the

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commencement of an action “without prepayment of fees and costs of security therefor, by a person

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who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” 28

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Based upon the allegations of the complaint, it appears the “POC” is the “Parole Outpatient Clinic” program,
which assists parolees with mental health problems.

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U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if

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leave to proceed in forma pauperis (“IFP”) is granted by the Court. See Rodriguez v. Cook, 169 F.3d

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1178, 1177 (9th Cir. 1999). The Court has reviewed the application and finds Plaintiff satisfies the

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requirements of 28 U.S.C. § 1915(a). Therefore, Plaintiff’s motion to proceed in forma pauperis is

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GRANTED.

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II.

Screening Requirement

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When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, and

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shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the

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action or appeal is “frivolous, malicious or fails to state a claim on which relief may be granted; or . . .

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seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 1915(e)(2). A

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claim is frivolous “when the facts alleged arise to the level of the irrational or the wholly incredible,

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whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez,

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504 U.S. 25, 32-33 (1992).

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III.

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Pleading Standards
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A

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pleading stating a claim for relief must include a statement affirming the court’s jurisdiction, “a short

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and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the

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relief sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P.

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8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to “less

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stringent standards” than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

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A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and

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succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). Further, a

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plaintiff must identify the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534

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U.S. 506, 512 (2002). The Supreme Court noted,

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Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted).
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Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982). The Court clarified further,
[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. 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. [Citation]. The
plausibility standard is not akin to a “probability requirement,” but it asks for more than
a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’

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Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should

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assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal

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conclusions in the pleading are not entitled to the same assumption of truth. Id.
The Court “may act on its own initiative to note the inadequacy of a complaint and dismiss it

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for failure to state a claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citation omitted).

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Leave to amend a complaint may be granted when the deficiencies of the complaint may be cured.

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Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

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IV.

Discussion and Analysis

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Plaintiff alleges that he “was to receive bus passes to get around” because he is 63 years old

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“with [a] number of physical and mental issue[s].” (Doc. 1 at 3.) According to Plaintiff, under the

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POC program and the Americans with Disabilities Act (“ADA”) he was “to receive assistance which

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was not given.” (Id.) He asserts that he needed to go to the police station to register, but “was told to

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walk 10+ miles which was not possible due to [Plaintiff’s] disability.” (Id.) Because Plaintiff failed to

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go to the police station, Agent Beard arrested him. (Id. at 4.)

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As an initial matter, Plaintiff has not shown he has any constitutional right to assistance with the

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POC. The POC was established to assist with parolees’ mental health treatment following a period of

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incarceration. See California Dep’t of Corrections & Rehabilitation, “Division of Adult Parole

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Operations—A Five-Year Roadmap to Our Future,” available at www.cdcr.gov/parole/road_map/

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index.html (last visited Apr. 23, 2015); see also Louis v. Astrue, 2011 U.S. Dist. LEXIS 89834 *41

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(E.D. Cal. Aug. 12, 2011). Given that the purpose of the POC is to help parolees with mental health

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treatment, there is no indication that Plaintiff is entitled to receive transportation under the POC.
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Furthermore, Plaintiff fails to allege facts sufficient to support a claim under the ADA. Title II

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of the ADA provides in relevant part: “no qualified individual with a disability shall, by reason of such

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disability, be excluded from participation in or be denied the benefits of the services, programs, or

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activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

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To state a cognizable claim for a violation of Title II, a plaintiff allege “(1) [he] is a qualified individual

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with a disability; (2) [he] was excluded from participation in or otherwise discriminated against with

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regard to a public entity’s services, programs, or activities, and (3) such exclusion or discrimination

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was by reason of [his] disability.” Lovell, 303 F.3d 1052 (citing Weinrich v. Los Angeles County

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Metro. Transp. Autho., 114 F.3d 976, 978 (9th Cir. 1997). Here, there are no facts alleged that support

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a determination that transportation is service provided by the State Parole Board, or that Plaintiff was

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denied access to transportation because of his disability.
Finally, this Court has determined that a plaintiff is unable to state a claim against a parole

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officer for failure to assist him with obtaining transportation. See Wallace v. Jones, 2013 U.S. Dist.

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LEXIS 71368 (E.D. Cal May 2013). In Wallace, the plaintiff asserted that the “defendants failed to

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assist him with obtaining substance abuse treatment, employment, transportation, clothing, food, and

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shelter.” Id. at *7. The Court explained, “Although the state must provide constitutionally adequate

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food, clothing and shelter for incarcerated prisoners, there is no duty for parole officers to ensure that

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parolees obtain public assistance, housing or medical care.” Id. at *7-8 (citing Cady v. Becarri, 2012

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U.S. Dist. LEXIS 173592 (D. Mont. Aug. 23, 2012); DeShaney v. Winnebago County Dep’t. of Social

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Services, 489 U.S. 189 (1989)).

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V.

Conclusion and Order

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Given the deficiencies of the complaint, the Court will provide Plaintiff with one opportunity

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to clarify his claims and set forth facts sufficient to support the claims for relief. See Noll v. Carlson,

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809 F.2d 1446, 1448-49 (9th Cir. 1987). The amended complaint must reference the docket number of

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assigned to this case and must be labeled “First Amended Complaint.”

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Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.

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Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The amended complaint must be “complete in itself without reference to the prior or superseded
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pleading.” Local Rule 220. Thus, once Plaintiff files an amended complaint, Plaintiff’s original

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complaint will not serve any function in the case. Plaintiff is warned that “[a]ll causes of action alleged

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in an original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at

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567 (citing London v. Coopers & Lybrand, 644 F2d 811, 814 (9th Cir. 1981)); accord. Forsyth, 114

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F.3d at 1474.

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Based upon the foregoing, IT IS HEREBY ORDERED:

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1.

Plaintiff’s motion to proceed in forma pauperis is GRANTED;

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2.

Plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND;

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3.

Within twenty-one days from the date of service of this order, Plaintiff SHALL file an
amended complaint curing the deficiencies identified by the Court in this order; and

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4.

If Plaintiff fails to comply with this order, the action will be dismissed for failure
to obey a court order.

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IT IS SO ORDERED.
Dated:

April 26, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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