Parker v. Kaiser Permanente

Filing 5

ORDER signed by Magistrate Judge Deborah Barnes on 12/16/2016 DENYING WITHOUT PREJUDICE 2 Motion to Proceed IFP. The complaint filed 8/23/2016 (ECF No. 1) is dismissed with leave to amend; Within 28 days from the date of this order, an amended c omplaint shall be filed that cures the defects noted in this order and complies with the FRCP and the Local Rules of Practice; The amended complaint must bear the case number assigned to this action and must be titled "Amended Complaint"; Failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed. (Jackson, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARIKA PARKER,

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No. 2:16-cv-2009 MCE DB PS

Plaintiff,
v.

ORDER

KAISER PERMANENTE,

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Defendant.

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Plaintiff, Arika Parker, is proceeding in this action pro se. This matter was referred to the

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undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending

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before the court is plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. (ECF Nos. 1 & 2.)

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Plaintiff’s complaint alleges that the defendant committed malpractice by holding plaintiff

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pursuant to California Welfare and Institution Code § 5150. The complaint alleges, generally,

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that the defendant held plaintiff involuntarily pursuant to § 5150, refused to show her a copy of

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the § 5150 protocol, refused to allow her to speak to a supervisor, and refused to allow her to

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contact the police.

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The court is required to screen complaints brought by parties proceeding in forma

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pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (en banc). Here, plaintiff’s informa pauperis application is incomplete and her amended
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complaint is deficient in several respects. Accordingly, for the reasons stated below, plaintiff’s

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complaint will be dismissed with leave to amend.

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I.

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Plaintiff’s Application to Proceed In Forma Pauperis
Plaintiff’s in forma pauperis application is incomplete. In this regard, the application asks

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plaintiff whether she has received any money from several identified sources within the past 12

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months and, if so, to describe the source of the money and the amount received. (ECF No. 2 at

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1.) Plaintiff’s application states that she received money in the past 12 months from business,

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profession or other self-employment, as well as from other sources. (Id.) Plaintiff, however,

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failed to describe the source of the money or state the amount received. (Id.)

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Moreover, a determination that a plaintiff qualifies financially for in forma pauperis status

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does not complete the inquiry required by the statute. “‘A district court may deny leave to

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proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that

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the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th

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Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see

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also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the

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district court did not abuse its discretion by denying McGee’s request to proceed IFP because it

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appears from the face of the amended complaint that McGee’s action is frivolous or without

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merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court

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to examine any application for leave to proceed in forma pauperis to determine whether the

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proposed proceeding has merit and if it appears that the proceeding is without merit, the court is

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bound to deny a motion seeking leave to proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the
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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:

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A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks.

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Fed. R. Civ. P. 8(a).

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II.

Plaintiff’s Complaint
Here, plaintiff’s complaint alleges that the basis for federal court jurisdiction over

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plaintiff’s state law claim of malpractice is diversity of citizenship. (Compl. (ECF No. 1) at 4.)

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Jurisdiction is a threshold inquiry that must precede the adjudication of any case before the

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district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d

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1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate

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only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,

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377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are presumed

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to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis,

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4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

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546 (1986)).

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Lack of subject matter jurisdiction may be raised by the court at any time during the

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proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir.

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1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has

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subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the

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obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v.

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Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court

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cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.

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The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer
“federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be

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conferred by federal statutes regulating specific subject matter. “[T]he existence of federal

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jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to

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those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d

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1108, 1113 (9th Cir. 2000).

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District courts have diversity jurisdiction only over “all civil actions where the matter in

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controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action

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is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a

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foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are

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additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different

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States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be

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a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss,

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797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between

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the parties-each defendant must be a citizen of a different state from each plaintiff.” In re

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Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008).

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Here, the court does not have diversity jurisdiction because the complaint alleges that

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plaintiff and defendant are both citizens of California. (Compl. (ECF No. 1) at 5.) Moreover,

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plaintiff’s complaint is devoid of any facts such as dates, names, or locations. In this regard,

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although the complaint complains, for example, that plaintiff was forced to change into “paper

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scrubs,” forced to take medication, and misdiagnosed, the complaint does not alleges by whom,
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when, or where any of the conduct at issue occurred. (Compl. (ECF No. 1) at 7.)

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Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a

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complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that

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state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.

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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels

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and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor

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does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

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enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,

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557). A plaintiff must allege with at least some degree of particularity overt acts which the

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defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
Accordingly, plaintiff’s complaint will be dismissed.

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III.

Leave to Amend
The undersigned has carefully considered whether plaintiff may amend the complaint to

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state a claim upon which relief can be granted and over which the court would have subject

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matter jurisdiction. “Valid reasons for denying leave to amend include undue delay, bad faith,

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prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d

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1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,

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701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the

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court does not have to allow futile amendments). However, when evaluating the failure to state a

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claim, the complaint of a pro se plaintiff may be dismissed “only where ‘it appears beyond doubt

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that the plaintiff can prove no set of facts in support of his claim which would entitle him to

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relief.’” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404

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U.S. 519, 521 (1972); see also Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007)

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(“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear

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that the deficiencies of the complaint could not be cured by amendment.”) (quoting Schucker v.

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Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988)).

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Here, given the vague and conclusory nature of the complaint’s allegations, the
undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile.
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Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an

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amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended

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complaint “the tenet that a court must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While

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legal conclusions can provide the complaint’s framework, they must be supported by factual

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allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from

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conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).

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Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an

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amended complaint complete. Local Rule 220 requires that any amended complaint be complete

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in itself without reference to prior pleadings. The amended complaint will supersede the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,

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just as if it were the initial complaint filed in the case, each defendant must be listed in the caption

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and identified in the body of the complaint, and each claim and the involvement of each

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defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file

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must also include concise but complete factual allegations describing the conduct and events

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which underlie plaintiff’s claims.1

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s August 23, 2016 motion to proceed in forma pauperis (ECF No. 2) is denied

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without prejudice.

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To the extent plaintiff intended to allege a violation of a right secured by the Constitution,
plaintiff is advised that 42 U.S.C. § 1983 is “a method for vindicating federal rights elsewhere
conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (citations and internal quotation marks
omitted). To state a cognizable claim under § 1983, a plaintiff must allege: (1) a violation of a
right secured by the Constitution and the laws of the United States; and (2) that the deprivation
was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 28
(1988); Ketchum v. County of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987).
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2. The complaint filed August 23, 2016 (ECF No. 1) is dismissed with leave to
amend.2

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3. Within twenty-eight days from the date of this order, an amended complaint shall be

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filed that cures the defects noted in this order and complies with the Federal Rules of Civil

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Procedure and the Local Rules of Practice.3 The amended complaint must bear the case number

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assigned to this action and must be titled “Amended Complaint.”

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4. Failure to comply with this order in a timely manner may result in a recommendation

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that this action be dismissed.

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Dated: December 16, 2016

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DLB:6
DB/orders/orders.pro se/parker2009.ifp.dism.ord

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If plaintiff elects to file an amended complaint, plaintiff must either file a completed application
to proceed in forma pauperis or pay the applicable filing fee.
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Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of
voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.
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