Blank v. Starbucks et al

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 11/28/16; GRANTING 2 Motion to Proceed IFP. ORDERING 1 Complaint DISMISSED. Plaintiff shall have 30 days from the date of this order to file an amended complaint that complies with the instructions given above.(Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL BLANK,

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Plaintiff,

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No. 2:16-cv-2777 JAM AC PS

v.

ORDER

STARBUCKS, LOAVES AND FISHES,

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Defendants.

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Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

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undersigned by Eastern District of California Local Rule [“Local Rule”]. 302(c)(21). Plaintiff has

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filed a request for leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915, and

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has submitted the affidavit required by that statute. See 28 U.S.C. § 1915(a)(1). The motion to

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proceed IFP will therefore be granted.
I.

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SCREENING

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A. Standards Governing Screening Under 28 U.S.C. § 1915(e)(2)

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Granting IFP status does not end the court's inquiry. The federal IFP statute requires

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federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to state a

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claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915(e)(2).

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Plaintiff must assist the court in determining whether the complaint is frivolous or not, by

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drafting the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ.

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P.”). The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules-

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policies/current-rules-practice-procedure/federal-rules-civil-procedure. Under the Federal Rules

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of Civil Procedure, the complaint must contain (1) a “short and plain statement” of the basis for

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federal jurisdiction (that is, the reason the case is filed in this court, rather than in a state court),

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(2) a short and plain statement showing that plaintiff is entitled to relief (that is, who harmed the

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plaintiff, and in what way), and (3) a demand for the relief sought. Fed. R. Civ. P. (“Rule”) 8(a).

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Plaintiff's claims must be set forth simply, concisely and directly. Rule 8(d)(1). Forms are

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available to help pro se plaintiffs organize their complaint in the proper way. They are available

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at the Clerk's Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at

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www.uscourts.gov/forms/pro-se-forms.

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff's favor. See Neitzke, 490 U.S. at 327; Erickson

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v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at Pasadena, 592

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F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler, 627 F.3d 338,

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340 (9th Cir. 2010). However, the court need not accept as true, legal conclusions cast in the

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form of factual allegations, or allegations that contradict matters properly subject to judicial

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notice. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v.

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Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001).

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may

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only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support

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of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.

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2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an
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opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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B. The Complaint

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The Complaint, ECF No. 1, is only 4 paragraphs long. It alleges that plaintiff was

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assaulted by a Starbucks employee, and that this employee threatened plaintiff’s life if he were to

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come back to that store in the future. Plaintiff further states that he was attempting to pocket the

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approximately $20.00 in tip money found in the store in order to buy food. Complaint at ¶ 1. It is

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also alleged that “this action” would not have happened but for Loaves and Fishes’ refusal to

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provide plaintiff with free breakfast, lunch, snacks, and “visitation with Diana for everyday

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encouragement.” Complaint at ¶ 2.

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C. Analysis

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This court lacks jurisdiction over this lawsuit and it therefore must be dismissed. The

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only jurisdiction-related allegation is the assertion that “[t]his Federal Court has jurisdiction due

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to violation of the American with Disabilities Act.” Complaint at ¶ 3. However, no facts are

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stated which would support a claim under the Americans With Disabilities Act (“ADA”).

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Plaintiff does not allege that he was denied access to the Starbucks store in the first instance, on

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account of disability or for any other reason, or that his ability to move about the store was

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hindered by barriers. Rather he complains that he was ejected from the store for, apparently,

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having taken money from a tip jar on the counter inside.
Plaintiff appears to alleges that defendant Loaves and Fishes1 is responsible for creating a

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situation in which plaintiff needed money for food, and is therefore responsible for the tip jar theft

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that led to his eviction from Starbucks. However, neither the ADA nor any other federal right or

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federal statute is implicated by this theory.

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Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of

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America, 511 U.S. 375, 377 (1994). This court may only entertain a case that involves a federal

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question or a lawsuit between citizens of different states. See 28 U.S.C. §§ 1331, 1332. A

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The court takes judicial notice of the fact that Loaves and Fishes is a Sacramento non-profit
organization that provides services to homeless members of the community.
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complaint that does not clearly establish the basis for federal jurisdiction must be dismissed. See

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Fed. R. Civ. Proc. 12(h)(3); A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003). Because

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the complaint before the court does not support federal jurisdiction, it must be dismissed.

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Plaintiff will be given an opportunity to amend his complaint.

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II.

AMENDING THE COMPLAINT
If plaintiff chooses to amend, the amended complaint must allege facts establishing the

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existence of federal jurisdiction. Rule 8 of the Federal Rules of Civil Procedure requires “a short

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and plain statement of the claim showing that [plaintiff] is entitled to relief.” Accordingly, an

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amended complaint should plainly state who harmed the plaintiff, and in what way. Plaintiff

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should identify the facts underlying his claims, not just assert legal conclusions. Facts alleged in

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an amended complaint “must not be inconsistent with those already alleged.” Lacey v. Maricopa

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County, 693 F.3d 896, 939 (9th Cir. 2012) (en banc).

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The allegations of the complaint should be set forth in sequentially numbered paragraphs,

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with each paragraph number being one greater than the one before, each paragraph having its own

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number, and no paragraph number being repeated anywhere in the complaint. Each paragraph

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should be limited “to a single set of circumstances” where possible. Rule 10(b). As noted above,

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forms are available to help plaintiffs organize their complaint in the proper way. These are

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available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or

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online at www.uscourts.gov/forms/pro-se-forms.

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Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid

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narrative and storytelling. That is, the complaint should not include every detail of what

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happened, nor recount the details of conversations (unless necessary to establish the claim), nor

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give a running account of plaintiff's hopes and thoughts. Rather, the amended complaint should

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contain only those facts needed to show how the defendant(s) legally wronged the plaintiff.

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The amended complaint must not force the court and the defendants to guess at what is

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being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)

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(affirming dismissal of a complaint where the district court was “literally guessing as to what

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facts support the legal claims being asserted against certain defendants”). The amended
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complaint must not require the court to spend its time “preparing the ‘short and plain statement’

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which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not

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require the court and defendants to prepare lengthy outlines “to determine who is being sued for

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what.” Id. at 1179.

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Also, the amended complaint must not refer to a prior pleading in order to make plaintiff's

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amended complaint complete. An amended complaint must be complete in itself without

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reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended

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complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline

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Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint

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supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &

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Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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III.

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For the reasons set forth above, IT US EHREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis, ECF No. 2, is GRANTED;

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2. The complaint, ECF No. 1, is DISMISSED; and

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CONCLUSION

Plaintiff shall have 30 days from the date of this order to file an amended complaint that

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complies with the instructions given above. The amended complaint shall be entitled

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“First Amended Complaint.” If plaintiff fails to timely comply with this order, the

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undersigned may recommend that this action be dismissed.

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IT IS SO ORDERED.

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DATED: November 28, 2016

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