Esco v. Toller Bail Bonds

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 04/22/15 ORDERING that the 2 Motion to Proceed IFP is GRANTED; the 1 Complaint is DISMISSED with leave to amend within 30 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICK ESCO,

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No. 2:15-cv-00612-GEB-AC
Plaintiff,

v.

ORDER

TOLLER BAIL BONDS,

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Defendant.

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

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

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Local Rule 302(c)(21).

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

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

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

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

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

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

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§ 1915(e)(2).

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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.

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

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

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

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

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

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

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

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

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

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It is difficult to discern from plaintiff’s complaint what claims he intends to assert.

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Although plaintiff submitted his complaint on a form used by prisoners for § 1983 claims, the

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only named defendant is not a public entity or public employee. See ECF No. 1 at 1 (naming

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Toller Bail Bonds as the only defendant); 2 (stating “the jail” told plaintiff it had nothing to do

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with his complaint); 3 (alleging facts without reference to the government at all). Plaintiff is

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informed that 42 U.S.C. § 1983 is a civil rights statute that provides for suits against individuals

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who act “under color of law,” which means as representatives of state or local government. See

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generally West v. Atkins, 487 U.S. 42, 49 (1988).

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It seems that plaintiff may be trying to state a claim for conversion, although he does not

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identify this legal theory as the basis for his complaint. Plaintiff alleges that he was let out on

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bond by Toller Bail Bonds despite the fact that he “did not ask to be let out.” Id. at 2.

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Apparently, Toller (presumably the owner/operator of Toller Bail Bonds) told the landlord of

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plaintiff’s former spouse, Martha Garza-Esco, that he had the right to enter her apartment. Id. at

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2–3. Once in Ms. Garza-Esco’s apartment Toller stole $8,500 from her dresser drawer. Id. at 3.

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Plaintiff seeks the return of that $8,500. Id.

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The court finds that plaintiff’s complaint does not contain a short and plain statement as
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required by Federal Rule of Civil Procedure 8(a)(2). Although the Federal Rules adopt a flexible

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

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

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complaint does not include any cognizable legal theory entitling him to relief from defendant and

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accordingly, it does not comply with the requirements of Rule 8(a)(2).

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It is also worth noting that plaintiff likely does not have standing to assert any claim based

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on the facts alleged in his complaint. Article III provides the constitutional requirements for

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standing: (1) a concrete and particularized injury in fact; (2) causation; and (3) redressability.

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Central Delta Water Agency v. United States, 306 F.3d 938, 946 (9th Cir. 2002). “To satisfy the

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Article III case or controversy requirement, a litigant must have suffered some actual injury that

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can be redressed by a favorable judicial decision.” Iron Arrow Honor Society v. Heckler, 464

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U.S. 67, 70 (1983). The injury must be “fairly traceable to the challenged action of the

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defendant.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In addition, the party

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filing the action or removing it to federal court bears the burden of establishing the constitutional

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elements of standing. Id. at 561; Central Delta Water Agency, 306 F.3d at 947. Plaintiff alleges

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that Toller stole $8,500 from Ms. Garza-Esco. ECF No. 1 at 3. As long as the $8,500 in question

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belonged exclusively to Ms. Garza-Esco, plaintiff has not alleged any injury to him that would

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create an Article III case or controversy.

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

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short and plain statement in accordance with Federal Rule 8(a) explaining who has engaged in

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what actions, how those actions have injured him, and what law entitles him to relief. Plaintiff

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must allege facts showing that he has suffered an injury caused by the defendant sufficient to

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create a case or controversy. Any amended complaint must also show that the federal court has

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

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allegations are true, and the amended complaint must contain a request for particular relief. The

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amended complaint should contain separately numbered, clearly identified claims.

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

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paragraphs, with each paragraph number being one greater than the one before, each paragraph
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having its own number, and no paragraph number being repeated anywhere in the complaint.

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

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

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

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

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

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

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Local Rule 15-220 requires that an amended complaint be complete in itself without
reference to any prior pleading. This is because, as a general rule, an amended complaint

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

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

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

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involvement of each defendant must be sufficiently alleged.

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

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

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

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

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

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

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

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

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result in a recommendation that this action be dismissed.

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DATED: April 22, 2015

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