Tanksley v. Langston

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/23/2015 GRANTING 2 Motion to Proceed IFP; DISMISSING the 1 Complaint with leave to amend; GRANTING the plaintiff thirty days to file a first amended complaint; CAUTIONING the plaintiff that a failure to timely file a first amended complaint will result in a recommendation that this action be dismissed. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MOODY WOODROW TANKSLEY,

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Plaintiff,

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No. 2:15-cv-1610-TLN-EFB PS

v.

ORDER

LANGSTON,

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Defendant.

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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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Determining that plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed

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below, plaintiff’s complaint fails to state a claim and must be dismissed.

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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).
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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the

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plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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“requires a complaint to include a short and plain statement of the claim showing that the pleader

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is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds

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upon which it rests.” Twombly, 550 U.S. at 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity
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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Here, it is unclear from the complaint whether this court has jurisdiction over the case.

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The complaint is nearly illegible and the court is unable to discern the precise basis for plaintiff’s

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claim(s). See ECF No. 1 at 3. The court (and defendant) should be able to read and understand

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plaintiff’s pleading within minutes. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).

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Because the complaint is so poorly drafted, the court is unable to discern whether it contains a

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viable claim for relief.

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As for the allegations that the court is able to read, it is unclear how such allegations

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support a claim for federal relief. The complaint indicates that this is a class action lawsuit

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brought under 42 U.S.C. § 1983. Id. at 3. Plaintiff appears to allege that he is a former inmate

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that currently resides in a transitional home owned by defendant Langston. Id. at 3. As far as the

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court can discern, plaintiff appears to allege that defendant Langston had the residence sprayed

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for various bugs and/or pests, and plaintiff became ill due to the pesticides. Id. The complaint,

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however, does not identify a specific claim(s) against defendant Langston.2

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Although plaintiff identifies this case as a class action, his class allegations are not

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cognizable. A layperson cannot ordinarily represent the interest of a class. See McShane v.

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United States, 366 F.2d 286 (9th Cir. 1996). Although plaintiff may represent himself in regards

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to his own claims, he may not represent others. Fymbo v. State Farm Fire & Casualty Co., 213

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F.3d 1320, 1321 (2000) (finding that pro se litigant could not adequately represent a punitive

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class); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987) (holding that a

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pro se litigant “has no authority to appear as an attorney for others”). In any event, the complaint

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Or if it does, the claim is hidden among the illegible portions of the complaint.
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does not identify any other individuals that were harmed by the alleged use of pesticides. Thus,

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there appears not basis for this case to proceed as a class action.

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Furthermore, plaintiff has failed to state a claim under section 1983. To assert a section

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1983 claim, plaintiff must allege two essential elements: (1) that a right secured by the

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Constitution or laws of the United States was violated, and (2) that the alleged violation was

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988). Plaintiff does not identify a specific constitutional right that defendant allegedly violated,

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nor does he allege facts demonstrating that defendant is a state actor. Accordingly, plaintiff’s

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complaint must be dismissed for failure to state a claim.

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Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable

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legal theory against a proper defendant and with sufficient facts in support of that cognizable

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legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts

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must afford pro se litigants an opportunity to amend to correct any deficiency in their

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complaints). Should plaintiff choose to file an amended complaint, the amended complaint shall

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clearly set forth the claims and allegations against each defendant. Any amended complaint must

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cure the deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, plaintiff is cautioned that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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Accordingly, IT IS HEREBY ORDERED that:

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

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2. Plaintiff’s compliant is dismissed with leave to amend, as provided herein.

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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. The amended complaint must bear the docket number assigned to this case and be

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titled “First Amended Complaint.” Failure to timely file an amended complaint in accordance

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

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DATED: November 23, 2015.

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