Levy v. Subway

Filing 10

FINDINGS and RECOMMENDATIONS signed by Judge Garland E. Burrell, Jr on 10/1/13 RECOMMENDING that Plaintiff's 6/5/13 application to proceed in forma pauperis 2 be denied; Plaintiff's 6/5/13 complaint 1 be dismissed without leave to amend; and this action be closed. Referred to Judge Garland E. Burrell, Jr; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMANDA U. LEVY,

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Plaintiff,

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No. 2:13-cv-1269 GEB DAD PS

v.

ORDER

SUBWAY,

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Defendant.

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Plaintiff Amanda Levy 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).1

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Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C.

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§ 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis

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status does not complete the inquiry required by the statute. “‘A district court may deny leave to

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

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

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Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See

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

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This matter was transferred from the United States District Court for the District of Connecticut
to this court on June 10, 2013.
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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 (9th

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Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is based

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

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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 true

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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).
Here, plaintiff’s complaint does not contain a short and plain statement of her
claim showing that she is entitled to relief. Rather, in her complaint plaintiff merely alleges as
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follows. On May 25, 2013, she was “bullied and defamed” by one of defendant’s employees at

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“defendant’s store on 9th and K.” (Compl. (Doc. No. 1) at 2.) Plaintiff was again “bullied and

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defamed” when she “returned to 7th and J again to replenish her blood supply.” (Id.) Plaintiff

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“has become anemic from lots of food poisonings.” (Id.) Moreover, “some women have bullied

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[plaintiff] all her life for not aging.” (Id. at 3.)

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Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a

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complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that

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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 555,

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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.
Accordingly, plaintiff’s complaint fails to state a claim on which relief may be

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granted. The court has carefully considered whether plaintiff may amend her complaint to state a

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claim upon which relief can be granted. “Valid reasons for denying leave to amend include

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undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan

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Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake Pharm. Ass’n v. Klamath

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Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall

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be freely given, the court does not have to allow futile amendments). In light of the obvious

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deficiencies of the complaint noted above, the court finds that it would be futile to grant plaintiff

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leave to amend.
Moreover, “the court notes that this complaint appears to be one of several

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hundred frivolous complaints that plaintiff has filed all over the country.”2 Amanda U. Levy v. 7-

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Findings and Recommendations are currently pending in one such case in this district
recommending that plaintiff be declared a vexatious litigant. See Levy v. California State
Library, No. 2:13-cv-0693 LKK AC PS, 2013 WL 4482947, at *1 (E.D. Cal. Aug. 19, 2013).
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Eleven Store, No. 2:13-cv-982 JAM EFB PS, 2013 WL 2286274, at *3 (E.D. Cal. May 23, 2013).

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The Ninth Circuit has acknowledged the “inherent power of federal courts to regulate the

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activities of abusive litigants by imposing carefully tailored restrictions under the appropriate

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circumstances.” De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990) (discussing

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requirements, pursuant to the All Writs Act, 28 U.S.C. § 1651(a), for issuing an order requiring a

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litigant to seek permission from the court prior to filing any future suits). See also Molski v.

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Evergreen Dynasty Corp., 500 F.3d 1047, 1057-62 (9th Cir. 2007).

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Local Rule 151(b) provides that “[t]he provisions of Title 3A, part 2, of the

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California Code of Civil Procedure, relating to vexatious litigants, are hereby adopted as a

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procedural rule of this Court on the basis of which the Court may order the giving of security,

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bond, or undertaking, although the power of the court shall not be limited thereby.” California

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Code of Civil Procedure, Title 3A, part 2, commences with § 391 and defines a “vexatious

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litigant” as including those persons acting in propria persona who “repeatedly files unmeritorious

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motions, pleadings, or other papers . . . or engages in other tactics that are frivolous or solely

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intended to cause unnecessary delay.” CAL. CODE CIV. PRO. § 391(b)(3).

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Pre-filing review orders, in which a complainant is required to obtain approval

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from a United States Magistrate Judge or District Judge prior to filing a complaint, can

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appropriately be imposed in certain circumstances but “should rarely be filed.” DeLong, 912

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F.2d at 1147. See also Molski, 500 F.3d at 1057. The Ninth Circuit has articulated that the

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following four conditions must be met before the court enters a pre-filing review order: (1)

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plaintiff must be given adequate notice to oppose the order; (2) the court must provide an

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adequate record for review, listing the pleadings that led the court to conclude that a vexatious

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litigant order was warranted; (3) the court must make substantive findings as to the frivolous or

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harassing nature of the litigant’s actions; and (4) the order must be narrowly tailored. See

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DeLong, 912 F.2d at 1147-48; Molski, 500 F.3d at 1057-58.

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To make substantive findings of frivolousness, the district court must look at “both

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the number and content of the filings as indicia” of the frivolousness of the litigant’s claims. In re

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Powell, 851 F.2d 427, 431 (9th Cir. 1988). See also Moy v United States, 906 F.2d 467, 470 (9th
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Cir. 1990) (a pre-filing “injunction cannot issue merely upon a showing of litigiousness.”).

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Absent “explicit substantive findings as to the frivolous or harassing nature of the plaintiff’s

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findings,” a district court may not issue a pre-filing order. O’Loughlin v. Doe, 920 F.2d 614, 618

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(9th Cir. 1990).
Having reviewed plaintiff’s allegations here, the undersigned will make a

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substantive finding of frivolousness as to the complaint filed in this action. Moreover, plaintiff is

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cautioned that frivolous filings such as this may result in the recommendation that her filings be

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subject to a pre-filing review order.3

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Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff’s June 5, 2013 application to proceed in forma pauperis (Doc. No. 2)

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be denied;
2. Plaintiff’s June 5, 2013 complaint (Doc. No. 1) be dismissed without leave to

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amend; and

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3. This action be closed.

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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 1, 2013

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DAD:6
Ddad1\orders.pro se\levy1269.ifp.den.f&rs

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As noted above, it has already been recommended by one Magistrate Judge of this court that
plaintiff be declared a vexatious litigant. If those findings and recommendations are adopted by
the District Judge assigned to that case, plaintiff may well be subject to a pre-filing review order
based upon her litigation activities prior to the filing of this action.
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