Yegorov v. Walmart

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 06/05/15 ORDERING that the 2 Motion to Proceed IFP is GRANTED; the 1 Complaint is DIMISSED and plaintiff is granted 30 days leave to amend. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DMITRIY YEGOROV,

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No. 2:15-cv-01065-GEB-AC

Plaintiff,
v.

ORDER

WALMART,

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Defendant.

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

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

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

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

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forma 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 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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The court has determined that plaintiff’s complaint does not contain a short and plain

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statement showing the court has jurisdiction and why he is entitled to relief as required by Federal

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Rule of Civil Procedure 8(a). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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

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sentences that are largely incomplete and/or incoherent, making it impossible to discern any basis

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for the court’s subject matter jurisdiction. Plaintiff’s complaint also does not seem to include any

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cognizable legal theory against defendant. Accordingly, plaintiff has failed to comply with the

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requirements of Federal Rule 8(a) and his complaint must be dismissed. The court will, however,

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grant plaintiff leave to file an amended complaint.

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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) pointing to some cognizable legal

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

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

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

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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

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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

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

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

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

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

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

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DATED: June 5, 2015

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