Graves v. Sosumnes River College, et al
Filing
9
ORDER signed by Magistrate Judge Allison Claire on 4/14/14 ORDERING that Plaintiff's 2 application to proceed in forma pauperis is granted. Plaintiff's 3 motion for order to allow his class attendance is denied. Plaintiff's 4 , 5 , 6 motions for the court to grant due process are denied. Plaintiff's complaint is dismissed; and plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Kastilahn, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
PETER GRAVES,
12
Plaintiff,
13
14
No. 2:14-cv-0765-JAM AC PS
v.
ORDER
COSUMNES RIVER COLLEGE, ET AL.,
15
Defendants.
16
Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to
17
18
28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by
19
Local Rule 72-302(c)(21).
Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable
20
21
to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma
22
pauperis will be granted. 28 U.S.C. § 1915(a).
23
A.
24
Screening the Complaint
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the
25
action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,
26
or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
27
§ 1915(e)(2).
28
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
1
1
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
2
Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
3
indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
4
490 U.S. at 327.
5
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon
6
which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in
7
support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467
8
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt
9
Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under
10
this standard, the court must accept as true the allegations of the complaint in question, Hospital
11
Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light
12
most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.
13
McKeithen, 395 U.S. 411, 421 (1969).
14
While plaintiff appears to accuse defendants of discriminating against him on account of
15
his unidentified ethnic background, the court finds the allegations in plaintiff’s complaint so
16
vague and conclusory that it is unable to determine whether the current action is frivolous or fails
17
to state a claim for relief. The court has determined that the complaint does not contain a short
18
and plain statement as required by Federal Rule of Civil Procedure 8(a)(2). Although the Federal
19
Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of
20
the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th
21
Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which
22
defendants engaged in that support plaintiff's claim. Id. Because plaintiff has failed to comply
23
with the requirements of Federal Rule of Civil Procedure 8(a)(2), the complaint must be
24
dismissed. The court will, however, grant leave to file an amended complaint.
25
If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional
26
grounds upon which the court’s jurisdiction depends. Fed. R. Civ. P. 8(a). Further, plaintiff must
27
demonstrate how the conduct complained of has resulted in a deprivation of plaintiff's federal
28
rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific
2
1
terms how each named defendant is involved. There can be no liability under § 1983 unless there
2
is some affirmative link between a defendant’s actions and the claimed deprivation. Rizzo v.
3
Goode, 423 U.S. 362 (9176); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.
4
Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
5
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
6
make plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended
7
complaint be complete in itself without reference to any prior pleading. This is because, as a
8
general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
9
F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
10
longer serves any function in the case. Therefore, in an amended complaint, as in an original
11
complaint, each claim and the involvement of each defendant must be sufficiently alleged.
12
B.
13
Miscellaneous Motions
In addition to his motion to proceed in forma pauperis, plaintiff has filed the following
14
four motions: (1) a March 26, 2014 motion for order to defendant to allow plaintiff’s class
15
attendance, (2) an April 2, 2014 motion for the court to grant due process, (3) an April 3, 2014
16
second motion for the court to grant due process, and (4) an April 4, 2014 third motion for the
17
court to grant due process. In the March 26, 2014 motion, plaintiff seeks a court order granting
18
him an opportunity to enroll in a class that he contends he is not allowed to attend. The court
19
finds the three motions for due process (ECF Nos. 4-6) to be nonsensical, and will deny them
20
accordingly.
21
In accordance with the above, IT IS HEREBY ORDERED that:
22
1. Plaintiff’s application to proceed in forma pauperis is granted (ECF No. 2);
23
2. Plaintiff’s March 26, 2014 motion for order to allow his class attendance (ECF No. 3)
24
25
26
is denied;
3. Plaintiff’s April 2, 3, and 4, 2014 motions for the court to grant due process (ECF Nos.
4-6) are denied;
27
4. Plaintiff's complaint is dismissed; and
28
5. Plaintiff is granted thirty days from the date of service of this order to file an amended
3
1
complaint that complies with the requirements of the Federal Rules of Civil Procedure,
2
and the Local Rules of Practice; the amended complaint must bear the docket number
3
assigned this case and must be labeled “Amended Complaint”; plaintiff must file an
4
original and two copies of the amended complaint; failure to file an amended
5
complaint in accordance with this order will result in a recommendation that this
6
action be dismissed.
7
DATED: April 14, 2014
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?