Cesar A. Betancourt v. New Century Mortgage Corporation et al

Filing 8

ORDER DISMISSING First Amended Complaint With Leave to Amend Within Thirty Days. The Court DISMISSES the Amended Complaint, (Doc. 7 at 1), WITHOUT PREJUDICE and WITH LEAVE TO AMEND. The Court further ORDERS that Plaintiff may file a second am ended complaint, if he so chooses, by no later than thirty (30) days from the date of this Order. The Court CAUTIONS Plaintiff that, if he fails to file a timely second amended complaint in compliance with this Order, the Court will recommend that the presiding district court judge dismiss the Amended Complaint with prejudice and, as such, terminate this case. Order signed by Magistrate Judge Sheila K. Oberto on 6/16/2017. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:16-cv-01855-AWI-SKO

CESAR A. BETANCOURT,

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ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND
WITHIN THIRTY DAYS

Plaintiff,

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v.

(Doc. 7)

NEW CENTURY MORTGAGE
CORPORATION, et al.,
Defendants.

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_____________________________________/

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Before the Court is the screening determination regarding Plaintiff’s First Amended

19 Complaint (the “Amended Complaint”). (Doc. 7 at 1.) For the reasons provided herein, the Court
20 FINDS that the Amended Complaint fails to state a claim on which relief may be granted. The
21 Court therefore DISMISSES the Amended Complaint with leave to amend within thirty days.
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I.

BACKGROUND

On December 9, 2016, Plaintiff filed his first pro se complaint in this Court. (Doc. 1.) On

24 the same date, Plaintiff also filed an Application to Proceed Without Prepayment of Fees and
25 Affidavit (the “Motion to Proceed In Forma Pauperis”). (Doc. 2.)
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On April 12, 2017, the Court entered an Order Dismissing Complaint with Leave to

27 Amend. (Doc. 6.) In this order, the Court discussed various deficiencies in Plaintiff’s complaint,
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1 (see id. at 3–5), and permitted Plaintiff to “file an amended complaint curing the deficiencies
2 identified by the Court” within “thirty . . . days” of the entry of the order, (id. at 5).
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Plaintiff then filed his single-page Amended Complaint on April 26, 2017. (Doc. 7 at 1.)

4 As such, the initial screening determination for the Amended Complaint is currently before the
5 Court.
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II.

LEGAL STANDARD

Courts are required to “screen . . . an action filed by a plaintiff proceeding in forma

8 pauperis.” Shirley v. Univ. of Idaho, Coll. of Law, 800 F.3d 1193, 1194 (9th Cir. 2015) (emphasis
9 added) (citing 28 U.S.C. § 1915(e)(2)(B)); see, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th
10 Cir. 2000) (stating that 28 U.S.C. § 1915(e) “applies to all in forma pauperis complaints”
11 (emphasis added)). Under the relevant provisions relating to screening complaints, courts “shall
12 dismiss the case at any time if the court determines that” (1) “the allegation of poverty is untrue,”
13 or (2) “the action . . . is frivolous or malicious,” “fails to state a claim on which relief may be
14 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28
15 U.S.C. § 1915(e)(2). “A plaintiff’s claim is frivolous ‘when the facts alleged rise to the level of
16 the irrational or the wholly incredible, whether or not there are judicially noticeable facts available
17 to contradict them.’” Morales v. City of Bakersfield, Case No.: 1:15-cv-01652-JLT, 2015 WL
18 9481021, at *1 (E.D. Cal. Dec. 29, 2015) (quoting Denton v. Hernandez, 504 U.S. 25, 32–33
19 (1992)).
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Dismissal for failure to state a claim “is proper where there is either a ‘lack of a cognizable

21 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” MCI
22 Commc’ns Servs., Inc. v. Sec. Paving Co., Case No. 1:15-CV-01940-LJO-JLT, 2016 WL
23 1436521, at *2 (E.D. Cal. Apr. 12, 2016) (quoting Balisteri v. Pacifica Police Dep’t, 901 F.2d
24 696, 699 (9th Cir. 1990)). Federal Rule of Civil Procedure 8(a) provides that “[a] pleading that
25 states a claim for relief must contain” the following: (1) “a short and plain statement of the
26 grounds for the court’s jurisdiction,” (2) “a short and plain statement of the claim showing that the
27 pleader is entitled to relief,” and (3) “a demand for the relief sought, which may include relief in
28 the alternative or different types of relief.” The pleading standard provided by Rule 8 “does not
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1 require ‘detailed factual allegations,’ but it demands more than an unadorned, the defendant2 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
3 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or
4 ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly,
5 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
6 ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
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To state a claim, “a complaint must contain sufficient factual matter, accepted as true, to

8 ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570); see
9 also Twombly, 550 U.S. at 555 (stating that “[f]actual allegations must be enough to raise a right
10 to relief above the speculative level”). “A claim has facial plausibility when the plaintiff pleads
11 factual content that allows the court to draw the reasonable inference that the defendant is liable
12 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “The plausibility standard
13 is not akin to a probability requirement, but it asks for more than a sheer possibility that a
14 defendant has acted unlawfully.” Id. (citation omitted). “In practice, ‘a complaint . . . must
15 contain either direct or inferential allegations respecting all the material elements necessary to
16 sustain recovery under some viable legal theory.’”

MCI Commc’ns Servs., Inc., 2016 WL

17 1436521, at *2 (quoting Twombly, 550 U.S. at 562).
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In determining whether a complaint states a claim, the factual “allegations in the complaint

19 . . . are accepted as true and construed in the light most favorable to the plaintiff,” Lazy Y Ranch
20 Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (citing Sprewell v. Golden State Warriors, 266
21 F.3d 979, 988 (9th Cir. 2001)), and “all doubts” are “resolve[d] . . . in the pleader’s favor,” MCI
22 Commc’ns Servs., Inc., 2016 WL 1436521, at *2 (citation omitted). However, “to be entitled to
23 the presumption of truth, . . . a complaint . . . must contain sufficient allegations of underlying
24 facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v.
25 Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
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Additionally, as Plaintiff is appearing pro se in this action, “the court must construe the

27 pleadings liberally and must afford [the] plaintiff the benefit of any doubt.” Karim-Panahi v. L.A.
28 Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1
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1 (9th Cir. 1985)).

See generally Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013)

2 (“Presumably unskilled in the law, the pro se litigant is far more prone to make errors in pleading
3 than a person who benefits from the representation of counsel.” (citation omitted)). Nonetheless,
4 “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitzke v.
5 Williams, 490 U.S. 319, 330 n.9 (1989).
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Finally, “[p]ro se complaints . . . may only be dismissed ‘if it appears beyond doubt that

7 the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”
8 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Wilhelm v. Rotman, 680 F.3d
9 1113, 1121 (9th Cir. 2012)); see, e.g., Schucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir.
10 1988) (“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely
11 clear that the deficiencies in the complaint could not be cured by amendment.” (citation omitted)).
12 Thus, “[a] pro se litigant must be given leave to amend his or her complaint, and some notice of its
13 deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured
14 by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citing Noll v.
15 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). “However, if, after careful consideration, it is
16 clear that a complaint cannot be cured by amendment, the [c]ourt may dismiss without leave to
17 amend.” Melger v. Obama, No. 2:16-cv-1527 AC P, 2017 WL 1213363, at *2 (E.D. Cal. Mar. 31,
18 2017) (citing Cato, 70 F.3d at 105–06).
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III.

DISCUSSION

The Amended Complaint in this case has two fatal deficiencies. First, the Amended

21 Complaint fails to identify the defendants in this action. The Amended Complaint provides
22 certain allegations against various parties, such as an “[a]gent from New Century,” “Wells Fargo
23 Bank,” “3 different[] Lawyers,” a third party who “used [Plaintiff’s] name and” a false “signature”
24 to receive “a lien” on Plaintiff’s property, and “First American Title Change.” (Doc. 7 at 1.)
25 However, Plaintiff never identifies which of these parties are the defendants in this matter. (See
26 id.) The Court reiterates its pertinent guidance from its Order Dismissing Complaint with Leave
27 to Amend: “Should Plaintiff file an amended complaint, . . . he must (1) name all defendants in the
28 caption and (2) include factual allegations against each defendant in the body of the complaint.”
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1 (Doc. 6 at 3.) The Court encourages Plaintiff to use a template for the amended complaint―such
2 as in his first complaint, (see Doc. 1)―to clearly identify the defendants in this case.
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Second, the Amended Complaint fails to identify Plaintiff’s causes of action.

As

4 previously stated by the Court in its Order Dismissing Complaint with Leave to Amend, “[t]he
5 amended complaint should identify the federal statute under which” Plaintiff’s “claim proceeds.”
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For these reasons, the Court finds that the Amended Complaint fails to state a claim on

8 which relief may be granted. The Court therefore finds that the Amended Complaint is properly
9 dismissed.
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Plaintiff May File a Second Amended Complaint

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As often noted by the Ninth Circuit, “[a] pro se litigant must be given leave to amend his or

12 her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies
13 of the complaint could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106
14 (9th Cir. 1995) (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). Here, Plaintiff may
15 be able to remedy the deficiencies in the Amended Complaint through amendment. The Court
16 therefore finds that it is appropriate to provide an opportunity for Plaintiff to file a second amended
17 complaint.
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If Plaintiff elects to file a second amended complaint, the Court encourages Plaintiff to

19 resolve the deficiencies identified above and remain mindful of both (1) the legal standard for
20 stating a claim, as provided herein, and (2) the Court’s previous statements regarding a properly
21 filed complaint in its first Order Dismissing Complaint with Leave to Amend. (See Doc. 6.)
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The Court also cautions Plaintiff that “[a]n amended complaint must be legible, must

23 identify what causes of action are being pursued, identify the improper actions or basis for liability
24 of each defendant, and the factual allegations must demonstrate plausible claims.” Borders v. City
25 of Tulare, CASE NO. 1:16-cv-1818-DAD-SKO, 2017 WL 1106039, at *4 (E.D. Cal. Mar. 23,
26 2017). Additionally, “Plaintiff may not change the nature of this suit by adding new, unrelated
27 claims in his amended complaint.” Id. (citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)).
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The Court declines to rule at this time on Plaintiff’s pending Motion to Proceed In Forma

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2 Pauperis. (Doc. 2.) If Plaintiff files a second amended complaint, it will be reviewed and the
3 Court will make a determination regarding the Motion to Proceed In Forma Pauperis. However, if
4 Plaintiff does not timely file an amended complaint or fails to cure the deficiencies identified in
5 this Order, the Court will deny the Motion to Proceed In Forma Pauperis and recommend that the
6 presiding district court judge dismiss the Complaint with prejudice and, consequently, terminate
7 this case.
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IV.

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CONCLUSION

For the reasons provided herein, the Court DISMISSES the Amended Complaint, (Doc. 7

10 at 1), WITHOUT PREJUDICE and WITH LEAVE TO AMEND. The Court further ORDERS
11 that Plaintiff may file a second amended complaint, if he so chooses, by no later than thirty (30)
12 days from the date of this Order.
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Finally, the Court CAUTIONS Plaintiff that, if he fails to file a timely second amended

14 complaint in compliance with this Order, the Court will recommend that the presiding district
15 court judge dismiss the Amended Complaint with prejudice and, as such, terminate this case.
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IT IS SO ORDERED.

18 Dated:
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June 16, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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