Blank v. Wells Fargo Bank

Filing 7

ORDER signed by Magistrate Judge Craig M. Kellison on 5/24/2017 ORDERING that Plaintiff's 2 Motion to Proceed IFP is GRANTED. Plaintiff's 4 first amended complaint is DISMISSED with leave to amend. Plaintiff's 5 second and 6 third amended complaints are STRICKEN as filed without leave of court. Plaintiff shall file an amended complaint within 30 days of the date of service of this order. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL LOUIS BLANK,

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Plaintiff,

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No. 2:16-cv-2422-JAM-CMK

vs.

ORDER

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WELLS FARGO BANK,

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Defendant.

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Plaintiff, proceeding pro se, brings this civil action. Pending before the court is

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plaintiff’s complaint (Doc. 1), first amended complaint (Doc. 4), second amended complaint

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(Doc. 5) and third amended complaint (Doc. 6). Plaintiff as also requested leave to proceed in

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forma pauperis (Doc. 2).

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Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that

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plaintiff is unable to prepay fees and costs or give security therefor. His motion for leave to

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proceed in forma pauperis (Doc. 2) will therefore be granted.

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As to the multiple complaints plaintiff has filed, the Federal Rules of Civil

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Procedure provide that a party may amend his pleading once as a matter of right at any time

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before being served with a responsive pleading. Fed. R. Civ. P. 15(a). Any other amendment is
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allowed only upon consent by the opposing party or the court’s leave. Id. Here, plaintiff did not

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request leave of court to file any of his amended complaints. His first amended complaint (Doc.

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4) would be considered his once as of right amendment. Without leave of court, the other

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amended complaints were filed without authorization, and will be stricken from the docket. This

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action, therefore, now proceeds on the amended complaint, which supercedes the prior complaint

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and is addressed in this order as the operative complaint.

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and

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1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h), this court must

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dismiss an action “[w]henever it appears . . . that the court lacks jurisdiction of the subject matter

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. . . .” Because plaintiff, who is not a prisoner, has been granted leave to proceed in forma

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pauperis, the court will screen the complaint pursuant to § 1915(e)(2).

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The Federal Rules of Civil Procedure require that complaints contain a “short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). “Although a pro se

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litigant . . . may be entitled to great leeway when the court construes his pleadings, those

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pleadings nonetheless must meet some minimum threshold in providing a defendant with notice

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of what it is that it allegedly did wrong.” Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th
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Cir. 1995). “[A] pro se litigant is not excused from knowing the most basic pleading

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requirements.” Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th

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Cir. 2000).

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In order to survive dismissal for failure to state a claim a complaint must contain

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more than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” ” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964 (2007). While “[s]pecific facts are not

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necessary; the statement [of facts] need . . . . give the defendant fair notice of what the . . . claim

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is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200

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(2007) (internal quotes omitted). In reviewing a complaint under this standard, the court must

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accept as true the allegations of the complaint in question, see id., and construe the pleading in

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the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff’s claim is unclear. It appears plaintiff is complaining about having to

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repay an overdraft debt in one of his accounts at Wells Fargo. He states the bank required him to

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repay an overdraft amount of $669.00 in order to get his savings account withdrawal privileges

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restored. The funds to cover the checking overdraft was from his Social Security direct deposit.

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He therefore alleges the defendant violated the American with Disabilities Act.

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II. DISCUSSION
Here, plaintiff’s complaint suffers from numerous deficiencies. Overall,

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plaintiff’s claims and allegations are too vague for the court to determine whether he is able to

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state a claim for relief. The court has an obligation to construe pro se pleadings liberally. Bretz

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v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal

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interpretation of a pro se complaint may not supply essential elements of the claim that were not

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pled. Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff states this court has jurisdiction to hear violations of American’s with
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Disabilities Act (ADA). It therefore appears that he is attempting to state a claim for violation of

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the ADA. Plaintiff, however, fails to plead sufficient facts to show that he is covered by the

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ADA or that there was a violation of the ADA, and if there was, what title was violated.

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To establish a violation of Title II of the ADA, a plaintiff must show that (1) she

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is a qualified individual with a disability; (2) she was excluded from participation in or otherwise

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discriminated against with regard to a public entity’s services, programs, or activities, and (3)

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such exclusion or discrimination was by reason of her disability. See Weinreich v. Los Angeles

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County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997).

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Here, plaintiff fails to indicate what title of the ADA he claims the defendants

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violated, but the court is assuming he intended to set forth a Title II violation. However, he fails

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to plead sufficient facts to state a prima facie violation. Not only does he fail to plead what

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disability he has to qualify him for ADA protection, he fails to set forth what services, programs

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or activities he was excluded from.

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The factual statements in plaintiff’s complaint are simply too vague and

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conclusory for the court to determine whether this action is frivolous, fails to state a claim for

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relief, or if this court has jurisdiction over his claims. Either way, the court has determined that

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the complaint does not contain a short and plain statement as required by Federal Rule of Civil

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Procedures 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint

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must give fair notice and state the elements of the claim plainly and succinctly. See Jones v.

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Comty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least

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some degree of particularity overt acts which defendants engaged in that support his claim, and

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how those act violated her rights. See id. Because plaintiff has failed to comply with the

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requirements of Rule 8(a)(2), the complaint must be dismissed. However, as it appears possible

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that some of the deficiencies identified in this order may be cured by amending the complaint,

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plaintiff is entitled to leave to amend prior to dismissal of the entire action. See Lopez v. Smith,

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203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).
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Plaintiff is informed that, as a general rule, an amended complaint supersedes the

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original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus,

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following dismissal with leave to amend, all claims alleged in the original complaint which are

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not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th

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Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior

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pleading in order to make plaintiff’s amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) is

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2.

Plaintiff’s first amended complaint is dismissed with leave to amend;

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3.

Plaintiff’s second and third amended complaints are stricken as filed

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granted;

without leave of court; and
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Plaintiff shall file an amended complaint within 30 days of the date of

service of this order.

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DATED: May 24, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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