Singh v. County of Sacramento et al

Filing 10

ORDER signed by Magistrate Judge Kendall J. Newman on 12/1/2015. Plaintiff's 9 Second Amended Complaint is DISMISSED with leave to amend. Plaintiff is GRANTED 30 days from entry of Order to file Third Amended Complaint. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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No. 2:14-cv-2382-JAM-KJN (PS)

RAJ SINGH,

ORDER

v.
COUNTY OF SACRAMENTO, et al.,

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Defendants.

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Plaintiff, who is proceeding without counsel, filed the original complaint and an

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application to proceed in forma pauperis on October 9, 2014.1 (ECF Nos. 1, 2.) On April 10,

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2015, the court granted plaintiff’s application to proceed in forma pauperis, but also dismissed his

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complaint without prejudice based on a number of deficiencies the court outlined in its order.

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(ECF No. 3.) The undersigned gave plaintiff leave to file an amended pleading (Id.), and plaintiff

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subsequently filed a First Amended Complaint in response to the court’s order. (ECF No. 4.)

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The court subsequently determined that the First Amended Complaint also contained many of the

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same deficiencies the court highlighted with respect to the original complaint. (ECF No. 7.)

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Nevertheless, in light of the fact that plaintiff attempted to remedy at least some of the original

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complaint’s inadequacies, the court again granted plaintiff leave to amend his complaint a second

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This case proceeds before the undersigned pursuant to Eastern District of California Local Rule
302(c)(21) and 28 U.S.C. § 636(b)(1).
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time. (Id.) On November 6, 2015, plaintiff filed a Second Amended Complaint. (ECF No. 9.)

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I.

LEGAL STANDARDS

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As discussed in the court’s previous orders in this matter, the determination that a plaintiff

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may proceed in forma pauperis does not complete the required inquiry. The court is also required

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to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. §

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1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to

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28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma

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pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is

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frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the

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action seeks monetary relief against an immune defendant.

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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.
To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (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, 556 U.S. 662, 678 (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, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (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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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear

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that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma

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pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll

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v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th

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Cir. 1984).

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II.

DISCUSSION

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The allegations of the Second Amended Complaint are virtually the same as those found

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to be defective in the First Amended Complaint. (Compare ECF No. 4 with ECF No. 9.) Indeed,

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the only readily identifiable changes plaintiff has made to his allegations in the Second Amended

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Complaint are the removal of the words “and Other Codes” from his first cause of action, the

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replacement of some of the end dates of the time periods concerning certain alleged actions from

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specific years to “through Present,” and a replacement of the language of the First Amended

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Complaint’s introduction with that of the original complaint. (See generally, ECF No. 9.) The

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Second Amended Complaint is not even signed by Karen Singh, the other purported plaintiff to

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this action, despite the court’s repeated admonitions that all plaintiffs to this action who are

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natural persons and are representing themselves must sign the complaint. (See ECF Nos. 3 at 4; 7

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at 4; 9 at 12.) It appears that plaintiff has in no way made a good faith attempt to rectify the

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problems present in his prior pleadings despite the court’s repeated explanations as to why his

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allegations as stated are deficient. Perhaps in recognition of this apparent fact, plaintiff filed a

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document the court construes as a status report concurrently with the Second Amended Complaint

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which admits that plaintiff filed the Second Amended Complaint “in order to beat the time limit”

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and states that “the complaint will be modified again” once “[o]thers . . . join this action with their

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attorneys.” (ECF No. 8.)

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Given plaintiff’s almost complete lack of material changes to his allegations, the court

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refuses to squander valuable judicial resources on unnecessarily repeating its original analysis

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here and directs plaintiff to review its prior order concerning the First Amended Complaint with

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regard to addressing the deficiencies present in the Second Amended Complaint. (See ECF No.
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7.) Nevertheless, out of an abundance of caution, the court grants plaintiff one final chance to

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amend his complaint. Plaintiff is directed to file a Third Amended Complaint, should he choose

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to do so, not later than thirty (30) days following the date of this order. Plaintiff is cautioned

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that filing another complaint with virtually the same allegations as the original complaint,

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First Amended Complaint, and/or the Second Amended Complaint will cause the court to issue

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sanctions including, but not limited to, a recommendation that this entire action be dismissed

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with prejudice. Similar sanctions will issue if the Third Amended Complaint does not

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otherwise address the fundamental deficiencies in plaintiff’s current allegations that the court

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has already repeatedly highlighted through its previous orders. (See ECF Nos. 3, 7.)

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s Second Amended Complaint (ECF No. 9) is dismissed with leave to

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amend so that plaintiff can correct the pleading deficiencies described herein and in the court’s

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previous orders.

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2.

Plaintiff is granted 30 days from the entry of this order to file a Third Amended

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Complaint that is complete in itself. The Third Amended Complaint must bear the docket

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number assigned to this case and must be labeled “Third Amended Complaint.”

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3. Failure to timely file a Third Amended Complaint in accordance with this order will

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result in a recommendation that this action be dismissed with prejudice. Similarly, failure to

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file a Third Amended Complaint that addresses the deficiencies described herein and in the

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court’s previous order will result in the issuance of sanctions, including, but not limited to, a

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recommendation that this action be dismissed with prejudice.

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IT IS SO ORDERED.
Dated: December 1, 2015

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