Yegorov v. Owens et al

Filing 3

ORDER signed by Magistrate Judge Deborah Barnes on 04/10/17 ORDERING that the 1 Complaint is DISMISSED WITH 28 days LEAVE TO AMEND. Alternatively, if plaintiff no longer wishes to pursue this action, plaintiff may file a notice of voluntary dismissal of this action. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DMITRIY YEGOROV,

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Plaintiff,

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No. 2:16-cv-2576 JAM DB PS

v.

ORDER

RONAL OWENS, PLACER COUNTY
DISTRICT ATTORNEY,

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Defendant.

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Plaintiff, Dmitriy Yegorov, is proceeding in this action pro se. This matter was referred to

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the 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.) Therein, plaintiff complains about the government’s alleged

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involvement in a motor vehicle accident.
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 complaint is deficient. Accordingly, for the reasons stated

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below, plaintiff’s complaint will be dismissed with leave to amend.

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I.

Plaintiff’s Application to Proceed In Forma Pauperis
Plaintiff’s in forma pauperis application makes the financial showing required by 28

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U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma

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

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leave to proceed in forma pauperis at the outset if it appears from the face of the proposed

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complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d

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1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th

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Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th

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Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed

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IFP because it appears from the face of the amended complaint that McGee’s action is frivolous

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or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the

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District Court to examine any application for leave to proceed in forma pauperis to determine

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

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the court is 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).

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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).
II.

Plaintiff’s Complaint
Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing

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that plaintiff is entitled to relief. In this regard, plaintiff’s complaint alleges that after plaintiff

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“filed documents in the Eastern District Court . . . against government USA and members gang

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Russian,” plaintiff was driving on the freeway when a vehicle “attempted to kill [plaintiff] on [a]

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federal road . . . .” (Compl. (ECF No. 1) at 2-3.) Plaintiff called 911 and “asked highway patrol

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to send interceptor car on the next exit,” but “911 ignored requests . . . .” (Id. at 3.)

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The only defendant named in the complaint, however, is Placer County District Attorney

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Ronald Owens. It is entirely unclear from reading the complaint what plaintiff believes Ronald

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Owens allegedly did wrong. The complaint also refers to “Government USA employees,”

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without providing any identifying information with respect to those alleged individuals.

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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.

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Moreover, plaintiff’s complaint contains a reference to a “conspiracy.” (Compl. (ECF No.

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1) at 1.) Plaintiff is advised that “[l]iability for civil conspiracy generally requires three elements:

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(1) formation of a conspiracy (an agreement to commit wrongful acts); (2) operation of a

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conspiracy (commission of the wrongful acts); and (3) damage resulting from operation of a

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conspiracy.” Davenport v. Litton Loan Servicing, LP, 725 F.Supp.2d 862, 881 (N.D. Cal. 2010).

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“[B]are assertion of conspiracy” and a “conclusory allegation of agreement at some unidentified

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point” will not suffice to state a cognizable claim under federal pleading standards. Twombly,

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550 U.S. at 556–57; Davenport, 725 F.Supp.2d at 881 (plaintiff’s conclusory allegation that

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defendants “agreed to hoodwink her with an unconscionable loan” did not state a cognizable

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conspiracy cause of action).
Accordingly, plaintiff’s complaint will be dismissed for failure to state a cognizable claim.

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III.

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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. “Valid reasons for denying leave to amend

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include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v.

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Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n

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v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to

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amend shall be freely given, the court does not have to allow futile amendments).

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However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff

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may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts

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in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,

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1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972); see also Weilburg v.

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Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

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amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.

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1988)).

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Here, given the extremely vague and conclusory nature of the complaint’s allegations, the

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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.

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. The complaint filed October 28, 2016 (ECF No. 1) is dismissed with leave to

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amend.1

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2. Within twenty-eight days from the date of this order, an amended complaint shall be
filed that cures the defects noted in this order and complies with the Federal Rules of Civil

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Plaintiff need not file another application to proceed in forma pauperis at this time unless
plaintiff’s financial condition has improved since the last such application was submitted.
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Procedure and the Local Rules of Practice.2 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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3. 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: April 10, 2017

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DLB:6
DB/orders/orders.pro se/yegorov2576.dism.lta.ord

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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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