Florez v. Parent Advocates of Sacramento

Filing 3

ORDER signed by Magistrate Judge Dale A. Drozd on 10/1/2014 DISMISSING the complaint with leave to amend; and plaintiff has 28 days to file an amended complaint.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REINA E. FLOREZ,

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No. 2:14-cv-1448 KJM DAD PS

Plaintiff,
v.

ORDER

PARENT ADVOCATES OF
SACRAMENTO,
Defendant.

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Plaintiff Reina Florez is proceeding in this action pro se. This matter was referred to the

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undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has

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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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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.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(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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To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(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:
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.
FED. R. CIV. P. 8(a).

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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.

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Moreover, jurisdiction is a threshold inquiry that must precede the adjudication of any

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case before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of

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Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited

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jurisdiction and may adjudicate only those cases authorized by federal law. Kokkonen v.

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Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37

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(1992). “Federal courts are presumed to lack jurisdiction, ‘unless the contrary appears

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affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting

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Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)).

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Lack of subject matter jurisdiction may be raised by the court at any time during the

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proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir.

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1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has

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subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the
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obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v.

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Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court

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cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.

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The burden of establishing jurisdiction rests upon plaintiff as the party asserting

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jurisdiction. Kokkonen, 511 U.S. at 377; see also Hagans v. Lavine, 415 U.S. 528, 543 (1974)

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(acknowledging that a claim may be dismissed for lack of jurisdiction if it is “so insubstantial,

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implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy

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within the jurisdiction of the District Court”); Bell v. Hood, 327 U.S. 678, 682-83 (1946)

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(recognizing that a claim is subject to dismissal for want of jurisdiction where it is “wholly

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insubstantial and frivolous” and so patently without merit as to justify dismissal for lack of

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jurisdiction ); Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (holding that even

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“[a] paid complaint that is ‘obviously frivolous’ does not confer federal subject matter jurisdiction

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. . . and may be dismissed sua sponte before service of process.”).

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Here, plaintiff’s entire complaint consists of a single page. The allegations found therein

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do not reflect a short and plain statement of the grounds upon which the court’s jurisdiction

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depends, a short and plain statement of plaintiff’s claim showing that the she is entitled to relief,

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or even a demand for judgment for the relief she seeks. Instead, plaintiff’s complaint consist only

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of vague and conclusory allegations concerning plaintiff’s, presumed, representation by the

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defendant and is devoid of any identified claims, an identified defendant or any demand for relief.

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Specifically, plaintiff’s one-page complaint appears to essentially alleges that plaintiff’s

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“grievance is improper representation . . . against . . . Sac County division CPS” and the

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“[a]ttorney client breakdown irreconcilable refusal to communicate . . . from 2006-2014 . . . .”

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(Compl. (Dkt. No. 1) at 1.) Presented with only these vague and unclear allegations, the court

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cannot characterize the nature of plaintiff’s claim, determine if this is a matter over which it has

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jurisdiction, or even identify a defendant to be served.

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Accordingly, for the reasons explained above, plaintiff’s complaint will be dismissed for

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failure to state a claim. The undersigned has carefully considered whether plaintiff may amend

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the complaint to state a claim upon which relief can be granted. “Valid reasons for denying leave
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to amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg.

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Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake

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Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that

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while leave to amend shall be freely given, the court does not have to allow futile amendments).

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However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff may be

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dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,

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1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972). See also Weilburg v.

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Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

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amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.

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1988)).

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Here, the court cannot yet say that it appears beyond doubt that leave to amend would be

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futile. Plaintiff’s complaint will therefore be dismissed, and she will be granted leave to file an

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amended complaint. Plaintiff is cautioned, however, that if she elects to file an amended

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complaint “the tenet that a court must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While

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legal conclusions can provide the complaint’s framework, they must be supported by factual

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allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from

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conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).

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Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an

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amended complaint complete. Local Rule 220 requires that any amended complaint be complete

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in itself without reference to prior pleadings. The amended complaint will supersede the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,

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just as if it were the initial complaint filed in the case, each defendant must be listed in the caption

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and identified in the body of the complaint, and each claim and the involvement of each

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defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
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must also include concise but complete factual allegations describing the conduct and events

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which underlie plaintiff’s claims.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The complaint filed June 17, 2014 (Dkt. No. 1) is dismissed with leave to
amend.

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2. Plaintiff is granted twenty-eight days from the date of this order to file an

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amended complaint that cures the defects noted in this order and complies with the Federal Rules

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of Civil Procedure and the Local Rules of Practice.1 Any amended complaint filed must bear the

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case number assigned to this action and must be titled “Amended Complaint.”

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3. Failure to comply with this order in a timely manner may result in a

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recommendation that this action be dismissed.

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Dated: October 1, 2014

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DAD:6
Ddad1\orders.pro se\florez1448.ifp.den.ord

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Alternatively, plaintiff may file a notice of voluntary dismissal of this action pursuant to Rule
41 of the Federal Rules of Civil Procedure.
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