Carter v. Yates

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 01/04/16 ORDERING that plaintiff's 2 Motion to Proceed IFP is GRANTED; the complaint is DISMISSED WITH LEAVE TO AMEND within 28 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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DARLICE CARTER,

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Plaintiff,

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No. 2:15-cv-2679-JAM-KJN PS

v.

ORDER

JAHMAN YATES,

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Defendant.

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Plaintiff Darlice Carter, who proceeds in this action without counsel, has requested leave

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

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in support of her request to proceed in forma pauperis makes the showing required by 28 U.S.C.

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§ 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).
Liberally construed, plaintiff’s complaint in this case alleges that defendant Jahman Yates

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and an unidentified woman, working as agents for the Social Security Administration, have been

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“watching” plaintiff and her family and putting their “li[ves] in danger.” (ECF No. 1 at 2.) It

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further alleges that “every time [plaintiff] tr[ies] to find help[defendant and the woman] go right

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behind [plaintiff] and tell people what they want to hear.” (Id.) Finally, it alleges that an

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unidentified “judge has been putting [defendant and the woman] up to the harassment” even

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though plaintiff has “been to court” and “did all they ask [her] to do.” (Id.) Based on these

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allegations, plaintiff appears to request relief in the form of “going back to court in Washing [sic]

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D.C.” (Id.)

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Plaintiff has also attached a civil cover sheet to her complaint claiming that the basis of

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jurisdiction for this action results from the “U.S. Government” being the plaintiff in this action.

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(ECF No. 1-1.) This cover sheet also alleges that the complaint asserts claims for “Assault, Libel

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& Slander,” that this is a “civil rights” action, and that this is a “reinstated or reopened” case.

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(Id.)

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There are several problems with plaintiff’s complaint. First, plaintiff claims that this court

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has jurisdiction over this action because the United States is the plaintiff. However, private

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citizens generally may not assert an action on the United States’ behalf unless granted clear

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statutory permission to do so. See, e.g., 31 U.S.C. § 3730(b) (providing that a private person may

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bring a civil action for violations of the False Claims Act in the name of the United States). Here,

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plaintiff does not allege that such authority exists for her claims in this action, and the court is

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aware of none.

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Second, although the complaint broadly alleges that this is a civil rights action, plaintiff

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fails to allege which constitutional or statutory right she is seeking to vindicate through her claim

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or claims. Similarly, plaintiff fails to even remotely allege sufficient facts from which the court

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can draw a reasonable inference that the officials involved engaged in the sort of conduct that

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could support claims for assault or defamation under California State law. Indeed, plaintiff’s

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present allegations suggest only that the officials involved watched her and her family, put her

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and her family in unspecified life threatening danger, and went behind plaintiff to “tell people

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what they want to hear.” (ECF No. 1 at 2.) Even assuming that the officials harassed plaintiff

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and her family and made statements behind her back, such conduct is not alleged with degree of

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factual specificity necessary to satisfy the applicable pleading requirements. See Iqbal, 556 U.S.

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at 678 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” ).

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Finally, it does not appear from the complaint’s allegations that the court can grant

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plaintiff’s sole request for relief of “going back to court in Washing [sic] D.C.” (ECF No. 1 at 2.)

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Plaintiff fails to specify whether she requests monetary damages, or some form of cognizable

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non-monetary relief such as declaratory or injunctive relief.
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Given the above-mentioned deficiencies, plaintiff’s complaint is subject to dismissal.

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Nevertheless, in light of plaintiff’s pro se status, and because it is at least conceivable that

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

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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 named defendant(s); shall clearly identify under which

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federal statute plaintiff’s claim is brought; shall outline the specific factual allegations in support

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of that claim; shall specify the relief sought; and shall be typed or written in legible handwriting.

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Importantly, nothing in this order requires plaintiff to file a first amended complaint. If

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plaintiff concludes that she is unable to state a viable claim or no longer wishes to pursue this

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action in federal court, she may instead file a notice of voluntary dismissal of the action without

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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 file either (a) a first amended complaint in

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accordance with the requirements of this order or (b) a notice of voluntary dismissal of

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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 potential

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dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure

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41(b).

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IT IS SO ORDERED.
Dated: January 4, 2016

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