Blackshire v. Sacramento County Sheriff

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 5/29/15 GRANTING 2 Motion to Proceed IFP. Complaint is DISMISSED with leave to amend within 28 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK BLACKSHIRE,

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Plaintiff,

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v.

No. 2:15-cv-1122-TLN-KJN PS

ORDER

SACRAMENTO COUNTY SHERIFF,

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Defendant.

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Plaintiff Patrick Blackshire, who proceeds in this action without counsel, has requested

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

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application in support of his request to proceed in forma pauperis makes the showing required by

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28 U.S.C. § 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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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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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 factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (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 v. Murphy, 745 F.2d 1221, 1230 (9th

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Cir. 1984).
In this case, plaintiff’s complaint (ECF No. 1) consists solely of the court’s boilerplate

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form instructions for drafting a complaint, and contains no factual allegations whatsoever. It does

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not identify what type of claim plaintiff asserts or how the court has subject matter jurisdiction

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over any such claim. The civil cover sheet (ECF No. 1-1) accompanying the complaint vaguely

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states that plaintiff’s claim relates to “Prisoner Mistreatment and Mental Anguish,” but provides

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no factual allegations to explain what that alleged mistreatment involved. As such, plaintiff’s

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complaint must be dismissed. Nevertheless, in light of plaintiff’s pro se status, and because

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plaintiff could conceivably cure such deficiencies, the court finds it appropriate to grant plaintiff

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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 the defendant; shall clearly identify the type of claim brought

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and outline the specific factual allegations in support of that claim; shall specify the relief sought;

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shall specify the basis for the court’s subject matter jurisdiction; and shall be typed or written in

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legible handwriting.

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Alternatively, if plaintiff concludes that he is unable to state a viable claim or no longer

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wishes to pursue the action at this time, he may instead file a notice of voluntary dismissal of the

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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

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the required deadline may result in the imposition of sanctions, including monetary

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sanctions or potential dismissal of the action with prejudice pursuant to Federal Rule

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: May 29, 2015

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