Haworth v. Fairfield-Suisun Unified School District

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/12/16 ORDERING that the 2 Motion to Proceed IFP is GRANTED; plaintiff's Complaint is DISMISSED 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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GERI LEE HAWORTH,

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No. 2:16-cv-00998 JAM GGH

Plaintiff,
v.

ORDER

FAIRFIELD-SUISUN UNIFIED
SCHOOL DISTRICT,
Defendant.

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Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule

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302(21), pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. §
1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.
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. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a cause of

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action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more ... than ... a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.

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Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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

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Id.

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92

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S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff

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proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal.

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See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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The Complaint here purports to be brought to this court on the basis of federal question

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jurisdiction. ECF No. 1 at 3. It bases that claim, however, solely on California State statutes.

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See id. at 4 identifying California Code of Civil Procedure section 372 which addresses

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conservatorships of minors. There are no federal statutes or legal theories mentioned in the

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complaint. Plaintiff seems to allege that a settlement occurred in a state court action, but she was

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never paid.

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As a result, the court will dismiss this complaint without prejudice to amendment if the

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plaintiff has any plausible federal claim. The plaintiff will be given 30 days to file an amended

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complaint, if she is able, to correct this deficiency. If no amended complaint is filed, the court

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will request that the district court dismiss the case with prejudice.

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Should plaintiff determine to file an amended complaint, she is directed to conform to the

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requirements of Federal Rule of Civil Procedure 8, which sets the standard for proper pleading in

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a federal court. Under Rule 8, a complaint must contain a short and plain statement of the

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grounds for the court’s jurisdiction, a short and plain statement of the claim that states the facts

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and demonstrates the basis for the relief plaintiff seeks, and a demand for the relief sought. The

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present complaint has no statement of facts at all, merely a reference to the Civil Procedure Code

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section referred to above.

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If the plaintiff cannot state a basis for federal jurisdiction – a federal statute or federal

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constitutional provision – that would entitle her to relief in a federal court, the filing of an

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amendment would be a fruitless exercise and she should, instead, pursue her rights in a California

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Superior Court.

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In light of the foregoing IT IS ORDERED THAT:

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1.

Plaintiff’s motion to proceed in forma pauperis is GRANTED’

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2.

Plaintiff’s complaint is DISMISSED with leave to amend;

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3.

Plaintiff shall file an amended complaint, if any, no more than 30 days from the

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date of this Order.

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Dated: October 12, 2016

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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