Wichelman et al v. Sacramento Housing & Redevelopment Agency et al

Filing 4

ORDER signed by Magistrate Judge Allison Claire on 7/2/14 ORDERING that Plaintiffs applications to proceed in forma pauperis (ECF Nos. 2 - 3 ) are granted; Plaintiffs complaint is DISMISSED with leave to amend within 30 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KARL WICHELMAN, ET AL.,

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No. 2:14-cv-1075 KJM AC PS

Plaintiffs,
v.

ORDER

SACRAMENTO HOUSING &
REDEVELOPMENT AGENCY, ET AL.,
Defendants.

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Plaintiffs, proceeding in this action pro se, have requested authority pursuant to 28 U.S.C.

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§ 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule

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72-302(c)(21).

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Plaintiffs have submitted the affidavit required by § 1915(a) showing that they are unable

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to prepay fees and costs or give security for them. Accordingly, the requests to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2). 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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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The court finds the allegations in plaintiffs’ 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 Federal Rule of Civil Procedure 8(a)(2). Although the Federal Rules adopt a flexible pleading

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policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiffs

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must allege with at least some degree of particularity overt acts which defendants engaged in that

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support their claim. Id. Because plaintiffs have failed to comply with the requirements of

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Federal Rule of Civil Procedure 8(a)(2), the complaint must be dismissed. The court will,

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however, grant leave to file an amended complaint.

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If plaintiffs choose to amend the complaint, plaintiffs must set forth the jurisdictional

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grounds upon which the court’s jurisdiction depends. Fed. R. Civ. P. 8(a). Further, plaintiffs

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must demonstrate how the conduct complained of has resulted in a deprivation of plaintiffs’

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federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in

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specific terms how each named defendant is involved. There can be no liability under § 1983

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unless there is some affirmative link between a defendant’s actions and the claimed deprivation.
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Rizzo v. Goode, 423 U.S. 362 (9176); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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In addition, plaintiffs are informed that the court cannot refer to a prior pleading in order

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to make plaintiffs’ 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 plaintiffs file 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 original

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

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

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1. Plaintiffs’ applications to proceed in forma pauperis (ECF Nos. 2-3) are granted;

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2. Plaintiffs’ complaint is dismissed; and

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3 Plaintiffs are granted thirty days from the date of service of this order to file an

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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 amended complaint must bear the docket number assigned

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this case and must be labeled “Amended Complaint”; plaintiffs must file an original and two

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copies of the amended complaint; failure to file an amended complaint in accordance with this

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order will result in a recommendation that this action be dismissed.

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DATED: July 2, 2014

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