Dean v. Springleaf Financial Services

Filing 4

ORDER signed by Magistrate Judge Craig M. Kellison on 6/6/2011 GRANTING 2 Motion to Proceed IFP. Pltf's 1 Complaint is DISMISSED and Pltf is GRANTED 30 days to file an amended complaint. (Zignago, K.)

Download PDF
1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 MICHAEL DEAN, 8 9 Plaintiff, No. CIV S-11-1192 KJM CMK (TEMP) PS vs. 10 SPRINGLEAF FINANCIAL SERVICES, 11 Defendant. 12 ORDER / 13 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority 14 pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this 15 court by Local Rule 302(c)(21). 16 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is 17 unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in 18 forma pauperis will be granted. 28 U.S.C. § 1915(a). 19 The federal in forma pauperis statute authorizes federal courts to dismiss a case if 20 the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be 21 granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 22 § 1915(e)(2). 23 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 24 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 25 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 26 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. 1 In order to avoid dismissal for failure to state a claim a complaint must contain 2 more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements 3 of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other 4 words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a 6 claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. 7 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 8 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 9 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be 10 granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 11 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. 12 Rhodes, 416 U.S. 232, 236 (1974). 13 Plaintiff’s complaint consists of one sentence complaining about a judge who is 14 not even a named defendant in the action. The court finds the allegations in plaintiff's complaint 15 so vague and conclusory that it is unable to determine whether the current action is frivolous or 16 fails to state a claim for relief. The court has determined that the complaint does not contain a 17 short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules 18 adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the 19 claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 20 1984). Plaintiff must allege with at least some degree of particularity overt acts which 21 defendants engaged in that support plaintiff's claim. Id. Because plaintiff has failed to comply 22 with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court 23 will, however, grant leave to file an amended complaint. 24 If plaintiff chooses to amend the complaint, plaintiff must set forth the 25 jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil 26 Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted 2 1 in a deprivation of plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 2 In addition, plaintiff is informed that the court cannot refer to a prior pleading in 3 order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 4 complaint be complete in itself without reference to any prior pleading. This is because, as a 5 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 6 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 7 longer serves any function in the case. Therefore, in an amended complaint, as in an original 8 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 9 In accordance with the above, IT IS HEREBY ORDERED that: 10 1. Plaintiff's request to proceed in forma pauperis is granted; 11 2. Plaintiff's complaint is dismissed; and 12 3. Plaintiff is granted thirty days from the date of service of this order to file an 13 amended complaint that complies with the requirements of the Federal Rules of Civil Procedure, 14 and the Local Rules of Practice; the amended complaint must bear the docket number assigned 15 this case and must be labeled "Amended Complaint"; plaintiff must file an original and two 16 copies of the amended complaint; failure to file an amended complaint in accordance with this 17 order will result in a recommendation that this action be dismissed. 18 19 DATED: June 6, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 JMM 25 dean-springleaf.ifp-lta.cmk 26 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?