Morrow v. DEA, et al

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/29/12 recommending that third amended complaint 6 be dismissed without leave to amend and this action be dismissed. F&R referred to Judge Judge Garland E. Burrell, Jr.. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL MORROW,

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Plaintiff,

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Case No. 2:12-cv-0890 GEB DAD PS

v.
REDDING DEA;
SACRAMENTO DEA,

FINDINGS AND RECOMMENDATIONS

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Defendants.

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Plaintiff, Michael Morrow, is proceeding in this action pro se. This matter was

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referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

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On July 12, 2012, the court issued an order denying plaintiff’s request to proceed

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in forma pauperis without prejudice and dismissing plaintiff’s complaint with leave to file an

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amended complaint. (Doc. No. 3.) Plaintiff was advised that if he elected to file an amended

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complaint he could either submit a new application to proceed in forma pauperis or pay the

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required filing fee.

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On July 16, 2012, plaintiff filed an amended complaint. (Doc. No. 4.) On July

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23, 2012, plaintiff filed a second amended complaint. (Doc. No. 5.) Finally, on July 26, 2012,

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plaintiff filed a third amended complaint. (Doc. No. 6.) Although plaintiff’s filing of multiple

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amended complaints violates Rule 15 of the Federal Rules of Civil Procedure, in light of
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plaintiff’s pro se status the court will accept the third amended complaint as the operative

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pleading in this action. Plaintiff, however, has not submitted a new application to proceed in

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forma pauperis, nor has he paid the required filing fee.

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Moreover, even if plaintiff had submitted an in forma pauperis application that

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made the showing required by 28 U.S.C. § 1915(a)(1) this action could not proceed. In this

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regard, a determination that a plaintiff qualifies financially for in forma pauperis status does not

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complete the inquiry required by the statute. “‘A district court may deny leave to proceed in

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forma pauperis at the outset if it appears from the face of the proposed complaint that the action

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is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998)

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(quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See also

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Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court to

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examine any application for leave to proceed in forma pauperis to determine whether the

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proposed proceeding has merit and if it appears that the proceeding is without merit, the court is

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bound to deny a motion seeking leave to proceed in forma pauperis.”). Moreover, the court must

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dismiss an in forma pauperis case at any time if the allegation of poverty is found to be untrue or

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if it is determined that the action is frivolous or malicious, fails to state a claim on which relief

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may be granted, or seeks monetary relief against an immune defendant. See 28 U.S.C. §

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1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis 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). Under this standard, a court must dismiss a complaint as frivolous where it is

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based on an indisputably meritless legal theory or where the factual contentions are clearly

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baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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To state a claim on which relief may be granted, the plaintiff must allege “enough

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facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court

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accepts as true the material allegations in the complaint and construes the allegations in the light
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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg.

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

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1245 (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).

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Here, plaintiff’s third amended complaint suffers from the same defects found by

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the court in his original complaint and addressed in the court’s July 12, 2012 order. In this

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regard, the third amended complaint does not contain a plain statement of the grounds upon

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which the court’s jurisdiction depends, a plaint statement of plaintiff’s claim showing that he is

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entitled to relief nor a demand for judgment for the relief plaintiff seeks.

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Instead, in his third amended complaint plaintiff simply states that in September

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of 2010 he “left Cottonwood” because he “feared for [his] life the DEA was after” him. (Third

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Am. Compl. (Doc. No. 6) at 2.) Thereafter, according to plaintiff, he eventually moved in with

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“Margaret” who is “a drug user, seller and deals and in stolen merchandise,” and who “also

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works with the DEA.” (Id.) Plaintiff alleges that Margaret informed the DEA of his movements.

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(Id.) Moreover, plaintiff alleges that across from Margaret’s house is a barn from which the

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DEA “would shoot blue lights and imagines” into her house. (Id. at 3.) Plaintiff claims that he

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was forced to leave Margaret’s house because the “DEA and drug addicts were everywhere.”

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(Id.)

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Jurisdiction is a threshold inquiry that must precede the adjudication of any case

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before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization,

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858 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may

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adjudicate only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511

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U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992).1 “Federal courts are

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presumed to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’”

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Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch.

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Dist., 475 U.S. 534, 546 (1986)).

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Lack of subject matter jurisdiction may be raised by the court at any time during

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the proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th

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Cir. 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it]

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has subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It

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is the obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux

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v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court

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cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.

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The burden of establishing jurisdiction rests upon plaintiff as the party asserting

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jurisdiction. Kokkonen, 511 U.S. at 377; see also Hagans v. Lavine, 415 U.S. 528, 543 (1974)

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(acknowledging that a claim may be dismissed for lack of jurisdiction if it is “so insubstantial,

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implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy

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within the jurisdiction of the District Court”); Bell v. Hood, 327 U.S. 678, 682-83 (1946)

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(recognizing that a claim is subject to dismissal for want of jurisdiction where it is “wholly

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insubstantial and frivolous” and so patently without merit as to justify dismissal for lack of

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jurisdiction ); Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (holding that even

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Congress has conferred jurisdiction upon the federal district courts as limited by the
United States Constitution. U.S. Const. Art. III, § 2; 28 U.S.C. § 132; see also Ankenbrandt v.
Richards, 504 U.S. 689, 697-99 (1992).
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“[a] paid complaint that is ‘obviously frivolous’ does not confer federal subject matter

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jurisdiction . . . and may be dismissed sua sponte before service of process.”).

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Moreover, although the Federal Rules of Civil Procedure adopt a flexible pleading

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policy, a complaint must give the defendant fair notice of the plaintiff’s claims and must allege

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facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.

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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels

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and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor

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does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

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enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at

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555, 557). A plaintiff must allege with at least some degree of particularity overt acts which the

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defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. Under these

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standards, a complaint should state identifiable causes of action and allege facts that satisfy the

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elements of those causes of action both plainly and succinctly, alleging specific acts engaged in

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by the defendant that would support plaintiff’s claim.

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Here, plaintiff’s third amended complaint fails to meet the minimum requirements

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for a civil complaint in federal court. Accordingly, for all the reasons cited above, plaintiff’s

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amended complaint should be dismissed for failure to state a claim upon which relief can be

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granted. The undersigned has carefully considered whether plaintiff may further amend his

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pleading 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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In light of the obvious deficiencies noted above, and the fact that plaintiff was unable to

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successfully amend his complaint after being granted leave to amend and provided the applicable

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legal standards, the court finds that it would be futile to grant plaintiff further leave to amend.
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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s July 26, 2012 third amended complaint (Doc. No. 6) be dismissed

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without leave to amend; and

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2. This action be dismissed.

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these findings and recommendations, plaintiff may file

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written objections with the court. A document containing objections should be titled “Objections

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to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may, under certain circumstances, waive the right to appeal

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the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 29, 2012.

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DAD:6
Ddad1\orders.pro se\morrow0890.dism.f&rs

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