Carmichael v. U.S. District Court, et al

Filing 3

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/29/14 ORDERING that Plaintiff's request to proceed in forma pauperis (ECF No. 2) is granted;Plaintiff's complaint is dismissed; and Plaintiff is granted thirty days from the date of service of this order to file an amended complaint; failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed.(Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GINA CARMICHAEL,

12
13
14

No. 2:14-cv-2491 JAM CKD PS

Plaintiff,
v.

ORDER

U.S. DISTRICT COURT, et al.,

15

Defendants.

16
17

Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to

18

28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by

19

Local Rule 302(c)(21).

20

Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable

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

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

24

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

25

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

26

§ 1915(e)(2).

27

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

28

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
1

1

Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

2

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

3

490 U.S. at 327.

4

In order to avoid dismissal for failure to state a claim a complaint must contain more than

5

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

6

of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

7

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

8

statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

9

upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

10

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

11

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

12

at 1949. When considering whether a complaint states a claim upon which relief can be granted,

13

the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

14

and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

15

U.S. 232, 236 (1974).

16

The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

17

unable to determine whether the current action is frivolous or fails to state a claim for relief. The

18

court has determined that the complaint does not contain a short and plain statement as required

19

by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

20

complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

21

v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at

22

least some degree of particularity overt acts which defendants engaged in that support plaintiff’s

23

claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2),

24

the complaint must be dismissed. The court will, however, grant leave to file an amended

25

complaint.

26

It appears that plaintiff is trying to reopen a prior case, Carmichael v. Sacramento Housing

27

Redevelopment Agency, 2:12-cv-0307 KJM CKD PS, so that she can file a second amended

28

complaint in that action. The prior case was closed on July 12, 2012 after the action was
2

1

dismissed without prejudice. Plaintiff fails to demonstrate good cause for reopening the prior

2

matter.

3

In the instant action, plaintiff names as a defendant the United States District Court.

4

There are no allegations against this defendant. With respect to defendant Sacramento Housing

5

Redevelopment Agency (“SHRA”), it appears plaintiff is complaining about actions that were

6

taken in 2006-2007. It appears plaintiff’s claims are time barred. The court will grant leave to

7

amend. However, any amended complaint must demonstrate why the action is not barred by the

8

applicable statute of limitations.

9

If plaintiff chooses to amend the complaint, plaintiff must also set forth the jurisdictional

10

grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a).

11

Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation

12

of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

13

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

14

make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended

15

complaint be complete in itself without reference to any prior pleading. This is because, as a

16

general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

17

F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

18

longer serves any function in the case. Therefore, in an amended complaint, as in an

19

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

20

alleged.

21

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

22

1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted;

23

2. Plaintiff’s complaint is dismissed; and

24

3. Plaintiff is granted thirty days from the date of service of this order to file an amended

25

complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the

26

Local Rules of Practice; the amended complaint must bear the docket number assigned this case

27

and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the

28

/////
3

1

amended complaint; failure to file an amended complaint in accordance with this order will result

2

in a recommendation that this action be dismissed.

3

Dated: October 29, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

4
5
6

4 carmichael0307.ifp-lta

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4