Yegorov v. United States of America

Filing 4

ORDER signed by Magistrate Judge Allison Claire on 5/20/15 ORDERING that Plaintiff's application to proceed in forma pauperis, ECF No. 2, is GRANTED; Plaintiff's request for a hearing to subpoena evidence, ECF No. 3, is DENIED; Plaintif f's complaint, ECF No. 1, is dismissed; and Plaintiff is granted thirty days from the date of service of this order to file an amended complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "Amended Complaint"; plaintiff must file an original and two copies of the 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

DMITRIY YEGOROV,

12
13
14

No. 2:14-cv-03003-TLN-AC

Plaintiff,
v.

ORDER

UNITED STATES OF AMERICA,

15

Defendant.

16
17

Plaintiff, proceeding in this action pro se, has requested authority pursuant to 28 U.S.C. §

18

1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 72-

19

302(c)(21). Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is

20

unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in

21

forma pauperis will be granted. 28 U.S.C. § 1915(a).

22

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

23

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

24

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

25

§ 1915(e)(2).

26

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

27

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

28

Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
1

1

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

2

490 U.S. at 327.

3

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

4

which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

5

support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

6

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

7

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

8

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

9

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

10

most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

11

McKeithen, 395 U.S. 411, 421 (1969).

12

The court finds that plaintiff’s complaint does not state a claim, for two reasons. First and

13

foremost, plaintiff’s complaint asserts § 1983 claims against the United States. However, § 1983

14

creates a cause of action against any person “acting under color of State law” who causes a

15

deprivation of the plaintiff's federal rights. 42 U.S.C. § 1983 (emphasis added). Section 1983

16

does not create a cause of action against the United States, its agencies, or its agents.1 Morse v.

17

N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997). Accordingly, plaintiff has not

18

asserted a claim that could secure him any relief.

19

Second, even if plaintiff did assert a valid cause of action against defendant his complaint

20

fails to allege sufficient facts under any legal theory. Although the Federal Rules adopt a flexible

21

pleading policy, a complaint must give fair notice and state the elements of the claim plainly and

22

succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff’s

23

complaint seems to allege some sort of government-wide conspiracy intended to terrorize him for

24

reasons that are unexplained. As a part of this conspiracy plaintiff alleges that he has been

25
1

26
27
28

Typically, allegations of constitutional violations are brought against federal agents in the form
of a Bivens claim. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 397 (1971). However, Bivens claims are only cognizable against federal agents, not federal
agencies. F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994). Accordingly, even if plaintiff had
asserted Bivens violations against defendant the court would still dismiss his complaint.
2

1

assaulted by government agents both in and outside of prison, ECF No. 1 at 3–4, 6–8, that the

2

Sacramento Sheriff’s Department has ignored his unrelated complaints of assault by third parties,

3

id. at 3–5, and that he has been the target of assassination attempts, id. at 5. Plaintiff’s complaint

4

does not specify who, exactly, associated with the federal government violated his constitutional

5

rights. Instead, plaintiff generally alleges that his constitutional rights have been violated by

6

employees of the federal government. See, e.g., ECF No. 1 at 5 (naming “government USA

7

employees” and “USA employees”), 6 (naming “[g]overnment USA”). To state a claim,

8

however, plaintiff must allege with at least some degree of particularity overt acts engaged in by

9

specific people supporting his claims. Jones, 733 F.2d at 649.

10

Accordingly, plaintiff’s complaint must be dismissed both because (1) § 1983 does not

11

create a cause of action that can be asserted against the federal government, and (2) plaintiff fails

12

to allege facts sufficient to state a claim.

13

Plaintiff is cautioned that if he chooses to file an amended complaint, he must submit a

14

short and plain statement in accordance with Federal Rule 8(a) pointing to some cognizable legal

15

theory that entitles him to relief. Any amended complaint must also show that the federal court

16

has jurisdiction, the action is brought in the right place, and plaintiff is entitled to relief if his

17

allegations are true. The amended complaint should contain separately numbered, clearly

18

identified claims.

19

In addition, the allegations of the complaint must be set forth in sequentially numbered

20

paragraphs, with each paragraph number being one greater than the one before, each paragraph

21

having its own number, and no paragraph number being repeated anywhere in the complaint.

22

Each paragraph should be limited “to a single set of circumstances” where possible. Fed. R. Civ.

23

P. 10(b). Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid

24

narrative and storytelling. That is, the complaint should not include every detail of what

25

happened, nor recount the details of conversations (unless necessary to establish the claim), nor

26

give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should

27

contain only those facts needed to show how the defendant legally wronged the plaintiff.

28

Local Rule 15-220 requires that an amended complaint be complete in itself without
3

1

reference to any prior pleading. This is because, as a general rule, an amended complaint

2

supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

3

plaintiff files an amended complaint, the original pleading no longer serves any function in the

4

case. Therefore, in an amended complaint, as in an original complaint, each claim and the

5

involvement of each defendant must be sufficiently alleged.

6

The court will also deny plaintiff’s self-styled request to the court for a hearing to

7

subpoena evidence. ECF No. 3 at 1. Federal Rule 45 authorizes the issuance of a subpoena

8

commanding nonparties to attend and give testimony or to produce and permit inspection of

9

designated records or things. To the extent that plaintiff’s motion can be interpreted as requesting

10

anything, however; it seems to seek leave of the court to add factual allegations to his complaint.

11

If plaintiff’s intention in filing his motion was, indeed, to add factual allegations to his complaint

12

he may do so on amendment. Accordingly, the court will deny plaintiff’s motion as moot.

13

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

14

1.

Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is GRANTED;

15

2.

Plaintiff’s request for a hearing to subpoena evidence, ECF No. 3, is DENIED;

16

3.

Plaintiff's complaint, ECF No. 1, is dismissed; and

17

4.

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

18

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

19

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

20

this case and must be labeled “Amended Complaint”; plaintiff must file an original and two

21

copies of the amended complaint; failure to file an amended complaint in accordance with this

22

order will result in a recommendation that this action be dismissed.

23

DATED: May 20, 2015

24
25
26
27
28
4