Olson v. Slote et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 10/03/17 GRANTING 3 Motion to Proceed IFP and DISMISSING Complaint with 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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KIMBERLY R. OLSON,
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No. 2:16-cv-956-KJM-EFB PS
Plaintiff,
v.
ORDER
PATRICIA SLOTE, et al.,
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Defendants.
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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her
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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 3.
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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.
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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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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing
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Conley v. Gibson, 355 U.S. 41 (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, plaintiff’s complaint fails to state a claim. Plaintiff brings this action against the
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Hornbook Community Services District (“HCSD”) and its officers, agents, and legal counsel; the
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Hornbrook Community Bible Church and its employees; and Basic Labs. ECF No. 1. Liberally
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construed, the complaint alleges that the defendants were involved in a conspiracy to improperly
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manage HCSD. Plaintiff purports to allege claims for violation of her rights to freedom of
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speech, equal protection, and due process under 42 U.S.C. §§ 1983 and 1985, violations of Title
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II of the Americans with Disabilities Act and the Racketeer Influenced and Corruption
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Organization Act, and more than 20 state law claims. Id. at 49-83.
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However, as drafted the complaint fails to provide defendants with “fair notice” of
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plaintiff’s claims against them. Rather than providing a short and plain statement of a plaintiff’s
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claims, the complaint is so prolix and convoluted that deciphering the factual basis for any of
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plaintiff’s claims as to any particular defendant is nearly impossible. The first 49 pages of the 88-
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page complaint identify the defendants and state background information. Plaintiff then provides
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a paragraph explaining that she incorporates all the background information as support for each of
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the 32 asserted claims. See id. at 49. By proceeding in this fashion, it is not possible for the court
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or defendants to ascertain which facts in the complaint support each particular claim.
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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair
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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev.
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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of
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particularity overt acts which defendants engaged in that support plaintiff's claim. Id. The
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allegations must be short and plain, simple and direct and describe the relief plaintiff seeks. Fed.
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R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of
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Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). The complaint fails to satisfy these
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requirements.
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Moreover, the complaint is replete with redundancy and vague and conclusory allegations
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that fail to support a cognizable claim for relief. For instance, the complaint alleges on several
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occasions that HCSD’s board members “conspired with, aided, and abetted the other Board
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Defendants (and thus the HCSD), in acting to: hold illegal, wrongful, and/or improper meetings
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of the HCSD Board, and then . . . violated State law (and particularly the Brown Act, and CPRA),
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and/or the HCSD Bylaws . . . .” Id. at 4-8. Plaintiff also claims that the defendants operated
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“HCSD in a manner contrary to law and thus causing a nuisance per se to Plaintiff and other
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members of the public who are served by the HCSD.” Id. at 19. Such conclusory allegations fail
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to satisfy Rule 8 and are insufficient to provide defendants with notice of the factual basis
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underlying each claim. See McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (affirming
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Rule 8 dismissal of complaint that was “argumentative, prolix, replete with redundancy, and
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largely irrelevant” and providing an example of a properly pleaded claim, which could be “read in
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seconds and answered in minutes”).
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Accordingly, plaintiff’s complaint must be dismissed for failure to comply with Rule 8
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and for failure to state a claim upon which relief may be granted. Plaintiff, however, is granted
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leave to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en
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banc) (district courts must afford pro se litigants an opportunity to amend to correct any
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deficiency in their complaints). The amended complaint must allege a cognizable legal theory
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against a proper defendant and contains sufficient facts in support of that cognizable legal theory.
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Thus, should plaintiff choose to file an amended complaint, the amended complaint shall clearly
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set forth the allegations against each defendant and shall specify a basis for this court’s subject
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matter jurisdiction. Any amended complaint shall plead plaintiffs’ claims in “numbered
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paragraphs, each limited as far as practicable to a single set of circumstances,” as required by
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Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line
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numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and
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130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and
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against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must
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plead clear facts that support each claim under each header. 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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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to
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make an amended complaint complete. Local Rule 220 requires that an amended complaint be
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complete in itself. This is because, as a general rule, an amended complaint supersedes the
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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once
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plaintiff files an amended complaint, the original no longer serves any function in the case.
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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not
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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.
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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.
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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to
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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order
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may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.
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Accordingly, IT IS ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 3) is granted.
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2. Plaintiff’s complaint 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 must
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be labeled “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: October 3, 2017.
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