Whitsitt v. Amazon.Com et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/4/2014 ORDERING 9 Plaintiffs motion to exceed the page limit for filing an amended complaint is DENIED; Plaintiff's amended complaint is DISMISSED; Plaintiff is GRANTED 30 days from the date of service of this order to file a second amended complaint that complies with the requirements of the FRCP, and the Local Rules of Practice.(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM WHITSITT,

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Plaintiff,

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No. 2:14-cv-0416 TLN CKD PS

v.

ORDER

AMAZON.COM, et al.,

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Defendants.

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Plaintiff is proceeding in this action pro se and in forma pauperis. The action was referred

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to this court by Local Rule 302(c)(21).
Plaintiff has filed an amended complaint. The federal in forma pauperis statute authorizes

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federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to state a

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claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either 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). 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.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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court has determined that the complaint does not contain a short and plain statement as required

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by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at

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least some degree of particularity overt acts which defendants engaged in that support plaintiff’s

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claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2),

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the complaint must be dismissed. The court will, however, grant leave to file an amended

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complaint.

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

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grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a).

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

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

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Plaintiff was previously advised of the requirements for stating a claim under the ADEA
and for intentional infliction of emotional distress. The court will repeat those standards for
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purposes of guiding plaintiff in filing an amended complaint. The Age Discrimination in

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Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., makes it unlawful for an employer “to fail

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or refuse to hire or to discharge any individual or otherwise discriminate against any individual

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with respect to his compensation, terms, conditions, or privileges of employment, because of such

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individual’s age.” 29 U.S.C. § 623(a)(1). To establish a prima facie case of an ADEA violation,

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the plaintiff must show that he (1) belonged to a protected class [age 40 or older]; (2) was

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satisfactorily performing his job or was qualified for hire or promotion; (3) was terminated,

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rejected for employment, or otherwise subjected to an adverse employment action; and (4) was

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replaced by a substantially younger employee with equal or inferior qualifications. See Coleman

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v. Quaker Oats Co., 232 F.3d 1271, 1280-81 (9th Cir. 2000). Plaintiff is also advised that under

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California law, the elements of a prima facie case for the tort of intentional infliction of emotional

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distress are “(1) extreme and outrageous conduct by the defendant with the intention of causing,

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or reckless disregard [for] the probability of causing, emotional distress; (2) the plaintiff’s

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suffering severe or extreme emotional distress; and (3) actual and proximate causation of the

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emotional distress by the defendant’s outrageous conduct.” Davidson v. City of Westminster

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(1982) 32 Cal.3d 197, 209.

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Plaintiff also makes vague allegations regarding an alleged invasion of his privacy rights

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because his disciplinary proceedings were not handled by a supervisor. Such a claim does not

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give rise to a cause of action for invasion of plaintiff’s privacy rights. See Porten v. University of

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San Francisco, 64 Cal. App. 3d 825 (1976) (liability for the common-law tort requires publicity;

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disclosure to a few people in limited circumstances does not violate the right); see also Shulman

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v. Group W Productions, Inc., 18 Cal.4th 200 (1998) (facts disclosed must be offensive or

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objectionable to a reasonable person); Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1, 35-

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37 (1994) (to state a claim under California constitutional right of privacy, plaintiff must allege a

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legally protected privacy interest, reasonable expectation of privacy, and serious invasion of

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privacy interest).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
make plaintiff’s amended complaint complete. Local Rule 15-220 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

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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 violation of the court’s prior order granting plaintiff leave to file an amended

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complaint, plaintiff filed a twenty page complaint, replete with duplicative sections that were

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virtually cut and pasted from plaintiff’s original complaint. It appears plaintiff made no attempt

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to concisely state his claims. The amended complaint also contains 35 lines per page, rather than

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28 lines per page. If plaintiff files a second amended complaint, plaintiff is limited to 15 pages;

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the lines of type per page shall not exceed 28.

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

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1. Plaintiff’s motion to exceed the page limit for filing an amended complaint (ECF No.

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9) is denied;

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2. Plaintiff’s amended complaint is dismissed;

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3. 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 Procedure,

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and the Local Rules of Practice; the second amended complaint shall not exceed fifteen pages,

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shall not exceed twenty eight lines per page, shall not use a font smaller than 12 Times New

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Roman, and shall not use single spacing except for any block quotations; the second amended

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complaint must bear 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 complaint;

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

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recommendation that this action be dismissed.

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Dated: April 4, 2014

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4 whit416.lta.2

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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