Graves v. Jones et al

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/17/14 ORDERING that Plaintiff's first Amended Complaint 1 be dismissed without leave to amend. This Findings and Recommendations are submitted to U.S. District Judge Morrison C. England, Jr. Objections to this F&R due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PETER GRAVES,

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No. 2:14-cv-01477 MCE AC PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

ROBERT JONES and LOS RIOS
COMMUNITY COLLEGE DISTRICT,
Defendants.

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Plaintiff, proceeding in this action pro se and in forma pauperis, has filed a first amended

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complaint, ECF No. 5, after his original pleading was dismissed as vague and conclusory. See

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ECF No. 4 (previous screening order). The first amended complaint is 33 pages long and

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accompanied by 70 pages of exhibits. The federal in forma pauperis statute authorizes federal

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

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which relief may be granted, or seeks monetary relief from a defendant who is immune from such

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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. A complaint, or portion thereof, should only be dismissed for failure to state a

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claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

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of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

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Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v.

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

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

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

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the light 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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In the first amended complaint, plaintiff brings suit against Robert Jones and the Los Rios

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Community College District. While plaintiff’s allegations are difficult to decipher, it appears he

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attended a board meeting on June 11, 2014 where he was to be heard regarding his appeal of the

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determination of his discrimination complaint. Plaintiff alleges that the meeting was rushed and

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he was not afforded an opportunity to speak. He contends that he was discriminated against

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under 42 U.S.C. § 1981 because he did not receive the same treatment as others at the meeting.

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See ECF No. 5 at 6. Plaintiff alleges that when he “went to comment about [his] lawsuit of three

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minutes, the board instead stripped [him] of [his] speech and substituted [his] speech for ten year

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old humiliating [him] in public.” Id. at 7. Plaintiff alleges he was prohibited from speaking at the

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meeting because of his ethnic background. Id. at 8. Plaintiff presents several disjointed claims

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including violations of his First, Eighth and Fourteenth Amendment rights, and a violation of the

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commerce clause based on his immobility because he was denied his right to be heard regarding

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his education.

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When a plaintiff appears pro se in a civil rights case, “the court must construe the

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pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. L.A.

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Police Dep’t., 839 F.2d 621, 623 (9th Cir. 1988). When interpreting the pleadings liberally,

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however, the court “may not supply essential elements of the claim that were not initially pled.”

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Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Additionally, a

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court need not accept as true unreasonable inferences, unwarranted deductions of fact, or
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conclusory legal allegations cast in the form of factual allegations. See Adams v. Johnson, 355

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F.3d 1179, 1183 (9th Cir. 2004). Before the court can dismiss a pro se civil rights complaint for

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failure to state a claim, the court must give the plaintiff a “statement of the complaint’s

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deficiencies.” Karim-Panahi, 839 F.2d at 623. Moreover, a pro se litigant “must be given leave

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to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.” Id. at 623 (citation omitted).

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Federal Rule of Civil Procedure 8(a)(2) requires that the complaint contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Rule 8(d)(1) states “[e]ach

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allegation must be simple, concise, and direct.” The claim for relief must be “plausible on its

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face,” meaning that the “factual content [ ] allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citation omitted). Lengthy complaints can violate Rule 8 if a defendant would have difficulty

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responding to the complaint. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d

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1047, 1059 (9th Cir. 2011). Furthermore, while a pro se plaintiff should generally be given leave

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to amend, “federal courts are far less charitable when one or more amended pleadings already

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have been filed with no measurable increase in clarity.” 5 Charles Alan Wright & Arthur R.

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Miller, Federal Practice and Procedure § 1217 (3d ed. 2004); see also Schmidt v. Herrmann, 614

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F.2d 1221, 1224 (9th Cir. 1980) (affirming dismissal of second amended complaint with

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prejudice where pleading consisted of “confusing, distracting, ambiguous, and unintelligible”

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allegations in violation of Rule 8).

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Here, plaintiff’s first amended complaint fails to comply with the standards set forth in

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Rule 8. Plaintiff’s claims are not short and plain statements, nor are they simple, concise or

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direct. See Twombly, 550 U.S. at 555. Rather, the first amended complaint consists of long,

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rambling and incoherent allegations that several constitutional rights and laws have been violated.

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These allegations are interspersed with disjointed factual assertions and conclusions.

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Accordingly, plaintiff’s first amended complaint remains as unclear as the original complaint.
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The Court previously granted plaintiff leave to amend with instructions on how to amend

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his complaint in compliance with Rule 8. Nonetheless, the first amended complaint still consists

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almost entirely of rambling and nonsensical allegations. As plaintiff has had ample opportunity

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to correct the deficiencies in his complaint, and he continues to make the same conclusory and

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incoherent allegations which the Court previously advised plaintiff are insufficient, the Court

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finds that any further attempt to amend would be futile.

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In accordance with the above, IT IS HEREBY RECOMMENDED that plaintiff’s first
amended complaint be dismissed without leave to amend.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 17, 2014

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