Sabetta et al v. National Railroad Passenger Corporation et al

Filing 15

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/17/11 ORDERING that the 13 First Amended Complaint is DISMISSED; plaintiffs are granted thirty days from the date of service of this order to file a second amended complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the Local Rules of Practice. (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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ANNE SABETTA, et al.,

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Plaintiffs,

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No. CIV S-11-0554 JAM CKD PS

vs.

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NATIONAL RAILROAD PASSENGER
CORPORATION, et al.,

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Defendants.

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/

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ORDER

Plaintiffs are proceeding in this action pro se. Plaintiffs have filed an amended
complaint.

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if

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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be

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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.
In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other

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words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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The court finds the allegations in plaintiff’s complaint so vague and conclusory

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that it is unable to determine whether the current action is frivolous or fails to state a claim for

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relief. The court has determined that the complaint does not contain a short and plain statement

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as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading

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policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff

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must allege with at least some degree of particularity overt acts which defendants engaged in that

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support plaintiff’s claim. Id. Because plaintiffs have failed to comply with the requirements of

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Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to

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file a second amended complaint.

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If plaintiffs choose to amend the complaint, plaintiffs must set forth the

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jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil

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Procedure 8(a). Further, plaintiffs must demonstrate how the conduct complained of has resulted
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in a deprivation of plaintiffs’ federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
In this action, plaintiffs contend their civil rights were violated in connection with

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an incident which occurred on an Amtrak train on September 16, 2006. Plaintiffs were

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previously advised of the standards for stating a claim under 42 U.S.C. § 1983. The amended

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complaint does not cure the pleading deficiencies evident in the original complaint. Plaintiffs

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fail to demonstrate how the conduct of each defendant resulted in a deprivation of plaintiffs’

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federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). In addition, plaintiffs name as

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defendants various public entities but fail to allege a custom or policy sufficient to give rise to

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municipal liability. See Monell v. Department of Social Servs., 436 U.S. 658 (1978) (liability of

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municipality under section 1983 must rest on official policy giving rise to the alleged

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constitutional deprivation).

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Moreover, plaintiffs were previously advised that it appeared plaintiffs’ claims

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were barred by the statute of limitations. The statute of limitations of the state in which the claim

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arises governs civil rights actions under 42 U.S. C. § 1983. See Donoghue v. County of Orange,

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848 F.2d 926, 929 (9th Cir. 1987). Section 1983 actions are characterized as personal injury

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actions for purposes of identifying the applicable statute of limitations. See Wilson v. Garcia.

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471 U.S. 261, 268-71, 276 (1985); Bianchi v. Bellingham Police Dep’t, 909 F.2d 1316, 1317 (9th

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Cir. 1990). In California, the applicable statute of limitations is two years. Cal. Code Civ. Proc.

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Code § 335.1; see Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004).

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In the amended complaint, plaintiffs allege they previously filed an action alleging

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the same allegations as pled here. The previous action, Sabetta, et al. v. National Railroad

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Passenger Corp., CIV S-08-2181 JAM KJN PS was filed September 16, 2008 and dismissed by

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order of the court with judgment entered on January 28, 2011. The pending action was not filed

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until February 28, 2011.

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As a model for drafting a second amended complaint, plaintiffs are directed to
McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). There, the Ninth Circuit Court of
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Appeal upheld the dismissal of a complaint it found to be “argumentative, prolix, replete with

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redundancy, and largely irrelevant. It consists largely of immaterial background information.” It

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observed that the Federal Rules require that a complaint consist of “simple, concise, and direct”

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averments. Id. As a model of concise pleading, the court quoted the standard form negligence

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complaint from the Appendix to the Federal Rules of Civil Procedure:

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1. Allegation of jurisdiction.

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2. On June 1, 1936, in a public highway, called Boylston Street, in

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Boston Massachusetts, defendant negligently drove a motor vehicle against

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plaintiff, who was then crossing said highway.

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3. As a result plaintiff was thrown down and had his leg broken,

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and was otherwise injured, was prevented from transacting his business, suffered

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great pain of body and mind, and incurred expenses for medical attention and

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hospitalization in the sum of one thousand dollars.

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Wherefore plaintiff demands judgment against defendant in the

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sum of one thousand dollars.
Id.
Phrased another way, “Vigorous writing is concise.” William Strunk, Jr. & E.B.

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White, The Elements of Style, § III, ¶ 13. Accordingly, any amended complaint should not

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exceed twenty pages.

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In addition, plaintiffs are informed that the court cannot refer to a prior pleading in

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order to make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently
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alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiffs’ amended complaint is dismissed; and

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2. Plaintiffs are granted thirty days from the date of service of this order to file a

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second amended complaint that complies with the requirements of the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket

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number assigned this case and must be labeled “Second Amended Complaint”; plaintiffs must

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file an original and two copies of the second amended complaint; failure to file a second

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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed.

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Dated: November 17, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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