Smith v. C.D.C. D.V.I. RC S.P.

Filing 3

ORDER signed by Magistrate Judge Dale A. Drozd on 05/18/11 ORDERING that the 2 Motion to Proceed IFP is GRANTED; the 1 Complaint is DISMISSED w/ 30 days leave to amend. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH A. SMITH,

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Plaintiff,

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v.
C.D.C., et al.,

ORDER
Defendants.

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No. CIV S-10-2918 GEB DAD PS

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This matter was referred to the undersigned in accordance with Local Rule

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302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has requested leave to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915.

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Plaintiff has submitted an in forma pauperis application that makes the showing

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required by 28 U.S.C. § 1915(a)(1). Plaintiff’s request for leave to proceed in forma pauperis

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will therefore be granted.

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The determination that plaintiff may proceed in forma pauperis does not complete

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the inquiry required by the statutes. Under 28 U.S.C. § 1915(e)(2), the court is required to

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dismiss an in forma pauperis case at any time if the plaintiff’s allegations of poverty is untrue or

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if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or

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seeks monetary relief against an immune defendant. To state a claim on which relief may be
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granted, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is frivolous when it lacks

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an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co.

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v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as

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true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:

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A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks.

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Fed. R. Civ. P. 8(a).
The court find the allegations in plaintiff’s complaint too vague and conclusory to

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state a claim upon which relief can be granted. Although the Federal Rules of Civil Procedure

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adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff’s

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claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R.

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Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A

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pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of cause of

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action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of

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‘further factual enhancements.’” Ashcroft v. Iqbal, --- U.S.---, ---, 129 S. Ct. 1937, 1949 (2009)

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(quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of
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particularity overt acts which the defendants engaged in that support the plaintiff’s claims.

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Jones, 733 F.2d at 649. A complaint must also contain “a short and plain statement of the

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grounds for the court’s jurisdiction” and “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(1)

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& 8(a)(3).

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In his complaint plaintiff alleges, apparently during a period of time when he was

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incarcerated1, that “D.V.I RC Correctional Officer Morgan” harassed and attempted to sexually

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assault plaintiff in his cell. (Compl. (Doc. No. 1) at 1.) Plaintiff’s complaint does not, however,

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provide any further factual details or even a date upon which this incident allegedly occurred.

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Moreover, plaintiff’s complaint does not contain a short and plain statement of the grounds upon

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which the court’s jurisdiction depends, a short and plain statement of the claim showing that the

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plaintiff is entitled to relief, or a demand for judgment for the relief plaintiff seeks. In this

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regard, plaintiff’s complaint fails to satisfy the minimum requirements for a civil complaint in

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federal court and does not state a cognizable claim. Accordingly, plaintiff’s complaint will be

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dismissed for failure to state a claim.

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The undersigned has carefully considered whether plaintiff may amend his

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complaint to state a claim upon which relief can be granted. “Valid reasons for denying leave to

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amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg.

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Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake

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Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that

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while leave to amend shall be freely given, the court does not have to allow futile amendments).

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However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff may be

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dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,

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1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972). See also Weilburg v.

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It would appear from plaintiff’s address of record, that he is not currently incarecerated.
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Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

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amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.

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1988)).

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Here, because of the vague and conclusory nature of plaintiff’s complaint the

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court cannot say that it appears beyond doubt that leave to amend would be futile. Plaintiff’s

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original complaint will therefore be dismissed, and he will be granted leave to file an amended

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complaint. Plaintiff is cautioned however that, if he elects to file an amended complaint, “the

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tenet that a court must accept as true all of the allegations contained in a complaint is

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inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. “While

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legal conclusions can provide the complaint’s framework, they must be supported by factual

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allegations.” Id. at 1950. Those facts must be sufficient to push the claims “across the line from

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conceivable to plausible[.]” Id. at 1951 (quoting Twombly, 550 U.S. at 557).

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Plaintiff is also reminded that any amended complaint he elects to file in this

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action must be complete in itself without reference to prior pleadings that have been dismissed.

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See Local Rule 220. The court cannot refer to prior pleadings in order to make plaintiff’s first

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amended complaint complete. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Moreover,

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any amended complaint must set forth factual allegations describing the conduct and events

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which underlie his claims against each defendant named in the pleading.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s October 29, 2010 application to proceed in forma pauperis (Doc. No.

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2) is granted.

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2. The complaint filed October 29, 2010 (Doc. No. 1) is dismissed with leave to

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amend.

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3. Within thirty days from the date of this order, an amended complaint shall be

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filed that cures the defects noted in this order and complies with the Federal Rules of Civil

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Procedure and the Local Rules of Practice. The amended complaint must bear the case number

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assigned to this action and must be titled “Amended Complaint.”

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4. Failure to respond to this order in a timely manner may result in a

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recommendation that this action be dismissed.

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DATED: May 18, 2011.

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DAD:6
Ddad1\orders.prose\smith2918.ifp.ord

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