Smith v. Shariat et al

Filing 15

ORDER granting 6 Motion to Dismiss and denying 9 Motion for Default Judgment and 11 Motion to Dismiss signed by Magistrate Judge Allison Claire on 3/27/14: Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WAYNE D. SMITH,

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No. 2:13-cv-1830 TLN AC PS

Plaintiff,
v.

ORDER

AZIZ SHARIAT, ET AL.,
Defendants.

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Pending before the court is defendant Aziz Shariat’s January 17, 2014 motion to dismiss,

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set for hearing on April 2, 2014. The court has determined that the matter shall be submitted

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upon the record and briefs on file and accordingly, the date for hearing of this matter shall be

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vacated. E.D. Local Rule 230. On review of the motion and the documents filed in support and

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opposition, THE COURT FINDS AS FOLLOWS:

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RELEVANT FACTUAL ALLEGATIONS
The operative first amended complaint (“FAC”) is, like the original pleading, disjointed

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and difficult to comprehend. As best as the court can discern, plaintiff entered into a contract

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with Don Bagwell, manager of the Chiquita Family Camp Ground and RV Park (“Camp

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Chiquita”), to perform work on the grounds, including investigation of the campground residents’

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drug use and the accuracy of the electrical meters on the grounds. As to the electrical meters,

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plaintiff noticed that Camp Chiquita was padding the charges for its own profit.
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In April 2012, plaintiff purchased a large trailer and rented Space #17 at Camp Chiquita.

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Plaintiff alleges that after he moved into the space and made note of the electrical overcharges,

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Shariat, the owner of Camp Chiquita, began harassing, intimidating and physically threatening

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him. Shariat allegedly directed management to write up false complaints regarding plaintiff,

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including that plaintiff physically threatened residents at Camp Chiquita. Plaintiff accuses Shariat

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and others of participating in a conspiracy to oust him from Camp Chiquita.

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On August 3, 2012, plaintiff’s trailer was burglarized by a woman previously identified as

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a drug addict. Several thousands of dollars and other items were taken from plaintiff’s home.

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Plaintiff claims the El Dorado Sheriff’s Department did not respond to this burglary in a timely

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manner. When two deputies, Gennai and Funk, did arrive at plaintiff’s home many days later,

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they allegedly threatened plaintiff. Plaintiff also accuses Lee Vinning, an insurance agent, of

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improperly processing plaintiff’s insurance claim as to this burglary.

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On February 4, 2013, plaintiff moved out of Camp Chiquita.

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PROCEDURAL BACKGROUND

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Plaintiff initiated this action on September 4, 2013. On September 12, 2013, the

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undersigned granted plaintiff’s request to proceed in forma pauperis (“IFP”) and screened the

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complaint, finding it to be so vague and conclusory that the court was unable to determine

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whether the action was frivolous or failed to state a claim. The complaint was therefore

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dismissed and plaintiff was directed to file an amended complaint.

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On October 15, 2013, plaintiff filed the operative FAC and invoking the court’s

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jurisdiction pursuant to 42 U.S.C. § 2000e-5(b), 29 U.S.C. § 626, 42 U.S.C. § 12117, and 42

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U.S.C. §1983 et seq. He also purportedly brings claims pursuant to, inter alia, the Americans

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with Disabilities Act and the Fourth, Fifth and Fourteenth Amendments of the Constitution.

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Before the court had an opportunity to screen the first amended complaint, plaintiff served

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all defendants. See ECF No. 5. The instant motion to dismiss was filed thereafter.1 Plaintiff

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opposes the motion.

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Also pending is defendants Linda Hilts and Evergreen MGA’s motion to dismiss. ECF No. 11.
This matter is set for hearing on April 23, 2014.
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LEGAL STANDARDS
The purpose of a motion to dismiss pursuant to this rule is to test the legal sufficiency of

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the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983).

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“Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts

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alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

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(9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to relief that is

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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a

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defendant’s Rule 12(b)(6) motion challenges the court’s ability to grant any relief on the

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plaintiff’s claims, even if the plaintiff’s allegations are true.

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In determining whether a complaint states a claim on which relief may be granted, the

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court accepts as true the 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); Love v.

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United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

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The court may consider facts established by exhibits attached to the complaint. Durning

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v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts

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which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388

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(9th Cir. 1987), and matters of public record, including pleadings, orders, and other papers filed

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with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The

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court need not accept legal conclusions “cast in the form of factual allegations.” Western Mining

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Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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DISCUSSION

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Having examined the amended complaint, the court agrees with defendant that plaintiff

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fails to provide sufficient facts that, accepted as true, would state a cognizable claim for relief.

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While Federal Rule of Civil Procedure 8 does not require detailed factual allegations in a

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pleading, it does require more than unadorned “the defendant unlawfully harmed me”

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accusations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff’s claims are conclusory and

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lacking sufficient details to enable the court (or the defendants) to determine the precise nature of

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plaintiff’s claims. In short, plaintiff’s amended complaint falls well below Rule 8’s standards.
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Moreover, as with the original complaint, the basis of this court’s jurisdiction is unclear.

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Although plaintiff invokes a string of federal statutes, he does not meet his burden in showing that

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jurisdiction is proper based on the facts of this case. Kokkonen v. Guardian Life Ins. Co., 511

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U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient

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allegations to show a proper basis for the court to assert subject matter jurisdiction over the

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action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P.

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8(a)(1). Plaintiff does not show, for example, how the breach of contract claim or claim for

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improper eviction are properly before the court. Additionally, although plaintiff invokes the

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Americans with Disabilities Act, which suggests that a disability is somehow involved in this

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action, he does not identify his disability.
Based on the foregoing, the first amended must be dismissed. If plaintiff chooses to file a

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second amended complaint, he must set forth the jurisdictional grounds upon which the court’s

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jurisdiction depends. Fed. R. Civ. P. 8(a). Further, plaintiff must demonstrate how the conduct

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complained of has resulted in a deprivation of plaintiff’s federal rights. See Ellis v. Cassidy, 625

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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 order to

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make plaintiff’s second amended complaint complete. Local Rule 15-220 requires that an

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

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

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375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the original

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pleadings no longer serves any function in the case. Therefore, in an amended complaint, as in an

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

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alleged.

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

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1. The April 2, 2014 hearing on defendant’s motion to dismiss is vacated from calendar;

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2. Defendant’s January 17, 2014 motion to dismiss (ECF No. 6) is granted;

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3. Plaintiff’s first amended complaint is dismissed;

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4. Defendants Linda Hilts and Evergreen MGA’s March 18, 2014 motion to dismiss
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(ECF No. 11) is denied as moot;
5. The April 23, 2014 hearing on Linda Hilts and Evergreen MGA’s motion to dismiss is
vacated from calendar;

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6. Plaintiff’s March 4, 2014 motion for default judgment (ECF No. 9) is denied as moot;

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7. The April 2, 2014 hearing on plaintiff’s motion for default judgment is vacated from

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calendar; and
8. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint that complies with the requirements of the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the second amended complaint must bear

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the docket number assigned this case and must be labeled “ Second Amended

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Complaint”; plaintiff must file an original and two copies of the second amended

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complaint; failure to file a second amended complaint in accordance with this order

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will result in a recommendation that this action be dismissed.

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DATED: March 27, 2014

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