Graves v. Mendez

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/1/2011 ORDERING that Plaintiff's 2 request to proceed in forma pauperis is GRANTED. Plaintiff's 1 complaint is DISMISSED. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint. (Duong, D)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 PETER GRAVES, 11 Plaintiff, 12 vs. 13 No. CIV S-11-1316 KJM EFB (TEMP) PS JOHN MENDEZ, 14 Defendant. ORDER / 15 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 16 17 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by 18 Local Rule 302(c)(21). Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable 19 20 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 21 pauperis will be granted. 28 U.S.C. § 1915(a). The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 22 23 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 24 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). 26 //// 1 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a 11 claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. 12 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 13 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 14 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can 15 be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 16 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer 17 v. Rhodes, 416 U.S. 232, 236 (1974). 18 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 19 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 20 court has determined that the complaint does not contain a short and plain statement as required 21 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 22 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 23 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at 24 least some degree of particularity overt acts which defendants engaged in that support plaintiff's 25 claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 26 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an 2 1 amended complaint. 2 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional 3 grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a). 4 Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation 5 of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 6 Plaintiff names as a defendant a judge of the United States District Court. It appears 7 from the allegations of the complaint that the actions taken by the judge which form the basis of 8 plaintiff’s complaint were taken during the course of civil proceedings over which the judge 9 presided and as such, judicial immunity attaches. See Sadoski v. Mosley, 435 F.3d 1076, 1079 10 (9th Cir.2006) (quoting Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)) (judge immune from 11 suit for damages based on judicial conduct when not acting in “clear absence” of jurisdiction). 12 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 13 make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 14 complaint be complete in itself without reference to any prior pleading. This is because, as a 15 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 16 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 17 longer serves any function in the case. Therefore, in an amended complaint, as in an original 18 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 19 In accordance with the above, IT IS HEREBY ORDERED that: 20 1. Plaintiff's request to proceed in forma pauperis is granted; 21 2. Plaintiff's complaint is dismissed; and 22 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 23 complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the 24 Local Rules of Practice; the amended complaint must bear the docket number assigned this case 25 and must be labeled “Amended Complaint;” plaintiff must file an original and two copies of the 26 //// 3 1 amended complaint; failure to file an amended complaint in accordance with this order will 2 result in a recommendation that this action be dismissed. 3 DATED: June 1, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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