Trotter v. Felix et al.

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/9/2018 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend. Plaintiff is GRANTED 30 days from the date of this order to file an amended complaint. (Donati, J)

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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 JOSEPH TROTTER, 12 Plaintiff, 13 14 15 No. 2:17-cv-14-JAM-EFB PS v. ORDER MARIC FELIX, NELSON FELIX; JOHN FLANGAN, and FUSION PROPERTY MANAGEMENT COMPANY, 16 Defendants. 17 18 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 19 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 20 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 21 Determining that plaintiff may proceed in forma pauperis does not complete the required 22 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 23 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 24 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 25 below, plaintiff’s complaint must be dismissed for failure to state a claim. 26 ///// 27 28 1 This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 Under this standard, the court must accept as true the allegations of the complaint in 13 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 14 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 15 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 16 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 17 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 18 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 19 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 20 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 21 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 22 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 23 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 24 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 25 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 26 authorized by a federal statute that both regulates a specific subject matter and confers federal 27 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 28 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 2 1 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 2 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 3 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 4 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 5 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 6 Plaintiff’s complaint is difficult to decipher. Liberally construed, it concerns a landlord- 7 tenant dispute between plaintiff and defendants Maric Felix, Nelson Felix, John Flanagan and 8 Fusion Property Corporation. See generally ECF No. 1. However, the allegations are so vague 9 and conclusory that the court is unable to discern the precise nature and basis for plaintiff’s 10 claim(s). He appears to allege that defendants denied him equal protection by not allowing him to 11 renew a lease agreement. Id. at 1. He alleges, in conclusory fashion, that he was subjected to 12 discrimination and harassment, and that defendant Fusion Property Management retaliated against 13 him for complaining about an unlawful eviction. Id. at 6-7. He further claims that defendants 14 monitored him inside his apartment, disclosed his medical information to others, and provide his 15 genetic information to law enforcement. Id. at 7. 16 While plaintiff’s allegations are too vague and conclusory to state a claim for relief, parts 17 of the complaint suggests that he is attempting to allege a Fourteenth Amendment equal 18 protection claim under 42 U.S.C. § 1983. See id. at 4. If so, he fails to state such a claim because 19 he does not allege that any of the defendants are state actors. See West v. Atkins, 487 U.S. 42, 48 20 (1988) (to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) that a right secured by 21 the Constitution or laws of the United States was violated, and (2) that the alleged violation was 22 committed by a person acting under the color of state law). 23 Accordingly, the complaint must be dismissed for failure to state a claim. However, 24 plaintiff is granted leave to file an amended complaint, if he can allege a cognizable legal theory 25 against a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. 26 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se 27 litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff 28 choose to file an amended complaint, the amended complaint shall clearly set forth the allegations 3 1 against defendant and shall specify a basis for this court’s subject matter jurisdiction. Any 2 amended complaint shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as 3 practicable to a single set of circumstances,” as required by Federal Rule of Civil Procedure 4 10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as 5 required by Eastern District of California Local Rules 130(b) and 130(c). Any amended 6 complaint shall also use clear headings to delineate each claim alleged and against which 7 defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts 8 that support each claim under each header. 9 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 10 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 11 complete in itself. This is because, as a general rule, an amended complaint supersedes the 12 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 13 plaintiff files an amended complaint, the original no longer serves any function in the case. 14 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 15 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 16 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 17 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 18 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 19 may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 20 Accordingly, IT IS ORDERED that: 21 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 22 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 23 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 24 complaint. The amended complaint must bear the docket number assigned to this case and must 25 ///// 26 ///// 27 ///// 28 ///// 4 1 be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 2 accordance with this order will result in a recommendation this action be dismissed. 3 DATED: January 9, 2018. 4 5 6 7 8 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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