Hedgcoth v. Social Security et al

Filing 3

ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Gregory G. Hollows on 07/07/11 GRANTING 2 Motion to Proceed IFP; Amended Complaint due within 28 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM JOSEPH HEDGCOTH,

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Plaintiff,

No. CIV S-11-1256 GEB GGH PS

vs.
SOCIAL SECURITY,

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Defendant.

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ORDER
/

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Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule

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72-302(21), pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted an affidavit making the showing required by 28 U.S.C.
§ 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

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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.
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. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519,

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520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th

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Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se

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plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before

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dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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Here, the complaint alleges in part:

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I came to social security because the police have pushed me away
from them thru coercion there is proof to this fact, I was looking
for a way to say that I am being hurt because of stalking, attack my
hearing (my ears) to attack my municipality (time) I have a hearing
test at mathers veterans hospital I now have inner ear trauma due to
noise & stress due to being in or going through a conspiracy to
vigilante this should prove that my hearing was exploited. [Sic]

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The remainder of the complaint is similarly difficult to decipher.

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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 plaintiff has 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 an amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must set forth the

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jurisdictional grounds upon which the court’s jurisdiction depends. Fed. R. Civ. P. 8(a). Further,

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plaintiff must demonstrate how the conduct complained of has resulted in a deprivation of

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plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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In addition, plaintiff is 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 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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

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

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff’s complaint is dismissed.

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3. Plaintiff is granted twenty-eight (28) days from the date of service of this order

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to file an amended complaint that complies with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must

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bear the docket number assigned this case and must be labeled “Amended Complaint”; plaintiff

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

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

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dismissed.

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DATED: July 7, 2011

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/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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GGH:076/Hedgcoth1256.amd.wpd

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