Hardy v. Department of Veteran Affairs

Filing 4

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/8/2015 GRANTING 3 Motion to Proceed IFP; DISMISSING the 1 Complaint; GRANTING the plaintiff thirty days to file an amended complaint; WARNING the plaintiff that the failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed. (Michel, G)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES HARDY, 12 Plaintiff, 13 14 15 No. 2:14-cv-2936 MCE CKD PS v. ORDER DEPARTMENT OF VETERAN AFFAIRS, Defendant. 16 17 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 18 19 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by 20 Local Rule 302(c)(21). Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable 21 22 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 23 pauperis will be granted. 28 U.S.C. § 1915(a). The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 24 25 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 26 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 27 § 1915(e)(2). 28 ///// 1 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 14 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 16 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 18 19 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 20 court has determined that the complaint does not contain a short and plain statement as required 21 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 22 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 23 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at 24 least some degree of particularity overt acts which defendants engaged in that support plaintiff’s 25 claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), 26 the complaint must be dismissed. The court will, however, grant leave to file an amended 27 complaint. 28 ///// 2 1 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional 2 grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a). 3 Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation 4 of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 5 Plaintiff complains that he has been denied federal benefits due to him because of 6 exposure to Agent Orange during his military service in Vietnam. It is not clear from the 7 complaint whether plaintiff has exhausted any administrative procedures for making his claim or 8 whether plaintiff has even presented his claim in the first instance to the Department of Veteran 9 Affairs. In any amended complaint, plaintiff should set forth specifically what steps he has taken 10 to make a claim for Agent Orange benefits. 11 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 12 make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended 13 complaint be complete in itself without reference to any prior pleading. This is because, as a 14 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 15 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 16 longer serves any function in the case. Therefore, in an amended complaint, as in an 17 original complaint, each claim and the involvement of each defendant must be sufficiently 18 alleged. 19 In accordance with the above, IT IS HEREBY ORDERED that: 20 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 3) is granted; 21 2. Plaintiff’s complaint is dismissed; and 22 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 23 complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the 24 Local Rules of Practice; the amended complaint must bear the docket number assigned this case 25 and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the 26 ///// 27 ///// 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: January 8, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 4 hardy.ifp-lta 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?