Todd v. Tuss

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 9/25/17 ORDERING that the first amended complaint (ECF No. 4 ), is DISMISSED with leave to amend; Plaintiff may file an amended complaint within 30 days of the date of this order. If plaintiff files an amended complaint, he must comply with the instructions given above. If plaintiff fails to timely comply with this order, the undersigned may recommend that this action be dismissed for failure to prosecute. (Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOBY JO TODD, 12 13 14 15 No. 2:16-cv-2496 TLN AC PS Plaintiff, v. ORDER MARK TUSS, Defendant. 16 17 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 18 undersigned by E.D. Cal. R. (“Local Rule”) 302(c)(21). Plaintiff is proceeding in forma pauperis 19 (“IFP”), pursuant to 28 U.S.C. § 1915. 20 On July 10, 2017, the court dismissed plaintiff’s complaint at the screening stage, but 21 granted him leave to amend. ECF No. 3. Plaintiff has now filed his first amended complaint 22 (“Complaint”). ECF No. 4. 23 24 I. SCREENING The federal IFP statute requires federal courts to dismiss a case if the action is legally 25 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 27 Plaintiff must assist the court in determining whether or not the complaint is frivolous, by drafting 28 the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). 1 1 Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain 2 statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this court, 3 rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled to 4 relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief sought. 5 Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. Rule 6 8(d)(1). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 9 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 10 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 11 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 12 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 13 denied, 564 U.S. 1037 (2011). 14 The court applies the same rules of construction in determining whether the complaint 15 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 16 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 17 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 18 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 19 (1972). However, the court need not accept as true conclusory allegations, unreasonable 20 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 21 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 22 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 23 556 U.S. 662, 678 (2009). To state a claim on which relief may be granted, the plaintiff must 24 allege enough facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 25 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 26 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 27 Iqbal, 556 U.S. at 678. 28 //// 2 1 A pro se litigant is entitled to notice of the deficiencies in the complaint and an 2 opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See 3 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 4 5 II. THE COMPLAINT Plaintiff names Mark Tuss as the sole defendant in this lawsuit. ECF No. 4 at 4 ¶ B. The 6 complaint alleges diversity jurisdiction as the basis for federal jurisdiction. See 28 U.S.C. § 1332. 7 A plaintiff properly invokes § 1332 jurisdiction “when she presents a claim between parties of 8 diverse citizenship that exceeds the required jurisdictional amount, currently $75,000.” Arbaugh 9 v. Y&H Corp., 546 U.S. 500, 513 (2006); 28 U.S.C. § 1332. Plaintiff assertions that defendant is 10 a citizen of Ohio and his request for relief in the amount of “$75,001 x 12 years” is sufficient to 11 satisfy diversity of citizenship and the amount in controversy requirements. Id. at 5 ¶ B; see also 12 28 U.S.C. § 1332(a). For screening purposes, the allegations of the complaint are sufficient to 13 establish the court’s jurisdiction. 14 Plaintiff alleges violations of “Due Process, 42 U.S. Code 1983” and “Waiver of 15 Sovereign Immunity.” ECF No. 4 at 5 ¶ III. Plaintiff’s statement of supporting facts reads, in its 16 entirety, as follows: “[e]very person under color of law is liable to party injured when denied 17 rights.” Id. 18 In its current form, the complaint fails to state a claim for relief. The information 19 provided is conclusory, incomplete, and vague. The complaint does not contain the short and 20 plaint statement required by Rule 8(a)(2). Although the Federal Rules adopt a flexible pleading 21 policy, a complaint must give fair notice and state the elements of the claim plainly and 22 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff 23 must allege with at least some degree of particularity overt acts which the defendant engaged in 24 that support plaintiff’s claims. Id. Because plaintiff has failed to comply with the requirements 25 of Federal Rules of Civil Procedure 8(a)(2), the complaint must be dismissed. 26 27 28 III. AMENDING THE COMPLAINT The amended complaint must contain a short and plain statement of plaintiff’s claims. That is, it must state what the defendant did that harmed the plaintiff. The amended complaint 3 1 must not force the court and the defendants to guess at what is being alleged against whom. See 2 McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal of a complaint where 3 the district court was “literally guessing as to what facts support the legal claims being asserted 4 against certain defendants”). 5 In setting forth the facts, plaintiff must not go overboard, however. He must avoid 6 excessive repetition of the same allegations. He must avoid narrative and storytelling. That is, 7 the complaint should not include every detail of what happened, nor recount the details of 8 conversations (unless necessary to establish the claim), nor give a running account of plaintiff’s 9 hopes and thoughts. Rather, the amended complaint should contain only those facts needed to 10 show how the defendant legally wronged the plaintiff. 11 Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s 12 amended complaint complete. An amended complaint must be complete in itself without 13 reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended 14 complaint supersedes the original complaint. See Pacific Bell Telephone Co. v. Linkline 15 Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint 16 supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice & 17 Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an 18 original complaint, each claim and the involvement of each defendant must be sufficiently 19 alleged. 20 IV. PLAIN LANGUAGE SUMMARY FOR PRO SE PLAINTIFF 21 Your complaint is being dismissed and you are being given opportunity to submit a 22 second amended complaint within 30 days. The amended complaint should be “simple, concise, 23 and direct.” You should provide information that clearly states (1) the basis for federal 24 jurisdiction, (2) the alleged harm you suffered and how the defendant harmed you, and (3) the 25 relief you are seeking. An amended complaint should briefly provide the necessary information, 26 following the directions above. 27 //// 28 //// 4 1 V. CONCLUSION 2 For the reasons explained above, IT IS HEREBY ORDERED that: 3 1. The first amended complaint (ECF No. 4), is DISMISSED with leave to amend; 4 2. Plaintiff may file an amended complaint within 30 days of the date of this order. If 5 plaintiff files an amended complaint, he must comply with the instructions given above. If 6 plaintiff fails to timely comply with this order, the undersigned may recommend that this action 7 be dismissed for failure to prosecute. 8 DATED: September 25, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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