Gonsalves v. Zemlyankima et al

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/19/15 RECOMMENDING that this action be dismissed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LORRAINE GONSALVES,

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Plaintiff,

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No. 2:15-cv-0859 TLN CKD PS

v.

FINDINGS AND RECOMMENDATIONS

LARISA ZEMLYANKIMA, et al.,

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Defendant.

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Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has filed a

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

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

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (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, 129 S. Ct. 1937, 1949 (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, 129 S. Ct.

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at 1949. 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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In this action, plaintiff originally alleged claims about an auto accident involving her and a

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retired police officer and named as defendants several insurance companies, state agencies and

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the Sacramento Police Department. Because it appeared that plaintiff alleged only state law

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claims, plaintiff was advised that a proper basis of subject matter jurisdiction must be alleged.

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Although the second amended complaint made off-handed references to due process and

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discrimination, there were no allegations in the complaint from which a basis for federal

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jurisdiction could be discerned. Plaintiff was again advised that a proper basis for federal

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jurisdiction must be set forth in a third amended complaint and that failure to properly plead a

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basis for subject matter jurisdiction would result in a recommendation that the action be

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dismissed. The third amended complaint does not cure the deficiencies found in the prior

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complaints. The third amended complaint now names as defendants several different defendants

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and has transmogrified from a complaint about an auto accident into a prolix undecipherable

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complaint about how plaintiff’s records are maintained.

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Plaintiff has now filed four complaints. Plaintiff’s third amended complaint again suffers

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from the deficiencies previously noted with regard to the original, first, and second amended

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complaints. In each complaint, plaintiff has failed to allege a proper basis for jurisdiction. The
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allegations are also insufficient to put defendants on notice of the basis of the claims brought

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against them. Despite repeated opportunities to cure the deficiencies in his complaints, plaintiff

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has failed to do so. Moreover, it appears that further amendment would be futile.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 19, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 gonsalves0859.tac.57

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