Reyes v. Radcliff

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 3/23/2015 GRANTING 2 Motion to Proceed IFP; DISMISSING CASE WITH LEAVE TO AMEND; ORDERING the plaintiff to file within 28 days, either (a) a first amended complaint in accordance with the requir ements of this order, or (b) a notice of voluntary dismissal of the action without prejudice; CAUTIONING the plaintiff that a failure to file either a first amended complaint or a notice of voluntary dismissal by the required deadline may result in the imposition of sanctions, including potential dismissal of the action with prejudice pursuant to F.R.Cv.P. Rule 41(b). (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VICTORIA L. REYES,

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Plaintiff,

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No. 2:15-cv-0556-GEB-KJN PS

v.

ORDER

RADCLIFF,

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Defendant.

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Plaintiff Victoria Reyes, who proceeds in this action without counsel, has requested leave

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to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Plaintiff’s application

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in support of her request to proceed in forma pauperis makes the showing required by 28 U.S.C.

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§ 1915. Accordingly, the court grants plaintiff’s request to proceed in forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any

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time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.

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This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C.
§ 636(b)(1).
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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. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked
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 allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (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, 745 F.2d at 1230.

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In this case, plaintiff vaguely alleges that, on November 21, 2014, defendant Radcliffe,

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who is presumably some type of law enforcement officer with an unspecified government agency,

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responded to plaintiff’s home with a gun based on noise complaints. Plaintiff claims that she is

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afraid of defendant and would like to “get a petition for writ of habeas corpus.” She asserts that
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she is homeless, and that she and her boyfriend, Ralph Mendez, have previously been stopped by

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the police and asked where they slept. Plaintiff further alleges that Radcliffe had previously

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arrested her husband, Jose Reyes, and expresses concern that she does not want to become a

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target due to the fact that Radcliffe purportedly dislikes plaintiff’s husband. (See ECF No. 1.)

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Plaintiff’s complaint, to the extent that it is intelligible, does not remotely allege sufficient

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facts from which the court can draw a reasonable inference that a constitutional violation or some

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violation of a federal statute occurred. Furthermore, because plaintiff does not appear to be

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incarcerated or on parole, plaintiff cannot conceivably obtain a writ of habeas corpus. Finally,

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plaintiff also does not adequately identify defendant, and by which government agency defendant

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is allegedly employed. Nevertheless, in light of plaintiff’s pro se status, and because it is at least

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conceivable that plaintiff could allege additional facts to potentially state a claim, the court finds

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it appropriate to grant plaintiff an opportunity to amend the complaint.

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If plaintiff elects to file an amended complaint, it shall be captioned “First Amended

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Complaint”; shall clearly identify defendant and the government agency by which defendant is

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employed; shall clearly identify the type of claim brought and outline the specific factual

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allegations in support of that claim; shall specify the relief sought; and shall be typed or written in

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legible handwriting.

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Importantly, nothing in this order requires plaintiff to file a first amended complaint. If

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plaintiff concludes that she is unable to state a viable claim or no longer wishes to pursue this

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action, she may instead file a notice of voluntary dismissal of the action without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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

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2. Plaintiff’s complaint is dismissed, but with leave to amend.

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3. Within 28 days of this order, plaintiff shall either (a) file a first amended complaint in

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accordance with the requirements of this order or (b) file a notice of voluntary

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dismissal of the action without prejudice.

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4. Failure to file either a first amended complaint or a notice of voluntary dismissal by
the required deadline may result in the imposition of sanctions, including potential
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dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure

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41(b).

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IT IS SO ORDERED.
Dated: March 23, 2015

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