Akbar v. Barretto

Filing 14

ORDER signed by Magistrate Judge Gregory G. Hollows on 2/28/17 ORDERING that Plaintiff's complaint is DISMISSED without prejudice; Plaintiff may file an amended complaint in compliance with the directions above within 30 days of the service of this Order; Plaintiff's 7 Motion for an extension of time to file an amendment is DENIED as moot; Plaintiff is notified that failure to comply with this order may result in a recommendation that his complaint be dismissed with prejudice.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAHDEE ABDUL AKBAR,

No. 2:17-cv-00140 GGH

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Plaintiff,

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ORDER
JENNIFER BARRETTO,

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Defendant.

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Petitioner acting in pro se filed a petition for a writ of habeas corpus in the Northern

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District of California on January 10, 2017. ECF No. 1. On January 19, 2017, Magistrate Judge

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Maria-Elena James issued an Order transferring the action to this court. ECF No. 4. This

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proceeding was referred to this court under Local Rule 302(21) and 28 U.S.C. section 636(b)(!).
Plaintiff has also submitted an affidavit making the showing required by 28 U,S.C.

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1915(a) seeking to proceed in forma pauperis, ECF No. 10 and a Motion for an Extension of

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Time to file a petition, ECF No. No. 7.
DISCUSSION

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A.

IN FORMA PAUPERIS APPLICATION
The court has determined that plaintiff meets the requirement for in forma pauperis and,

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accordingly, his request will be GRANTED. However, merely determining eligibility for in

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forma pauperis status does not conclude the court’s duties.
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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §

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1915(e)(2).

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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); Franklin v. Murphy, 745 F.2d 1221, 1227–1228

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are “clearly baseless.”

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Neitzke, 490 U.S. at 327. Thus, the term “frivolous,” when applied to a complaint, “embraces not

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only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. at 325.

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A less stringent examination is afforded pro se pleadings, Haines, 404 U.S. at 520, 92 S.

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Ct. at 595, but simple reference to federal law does not create subject-matter jurisdiction. Avitts

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v. Amoco Prod. Co., 53 F.3d 690, 694 (5th Cir.1995). Subject-matter jurisdiction is created only

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by pleading a cause of action within the court’s original jurisdiction. Id. Here petitioner purports

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to seek habeas corpus but his petition discloses that he is not challenging his conviction or his

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resulting sentence. Rather he appears to allege that he is being deprived of his right to proper

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medical care and suffering discrimination. This is not a subject for habeas corpus, but rather one

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that may be pleaded under 28 U.S.C. § 1983.

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The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal

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question” and “diversity” jurisdiction, respectively. Statutes which regulate specific subject

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matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J.

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Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible

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assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v.

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Hood, 327 U.S. 678, 682 (1945). A federal claim which is so insubstantial as to be patently

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without merit cannot serve as the basis for federal jurisdiction. See Hagans v. Lavine, 415 U.S.

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528, 537-538 (1974).

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Simple reference to federal law does not create subject-matter jurisdiction. Avitts v.
Amoco Prod. Co., 53 F.3d 690, 694 (5th Cir.1995). Subject-matter jurisdiction is created only by
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pleading a cause of action within the court's original jurisdiction. Id. Section 1983; however, is

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merely the statutory vehicle for pursuing damages claims arising from federal constitutional and

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statutory violations committed by government officials. Section 1983 does not create any

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substantive rights. To succeed on a § 1983 damages or prospective relief claim, a plaintiff must

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demonstrate not only the deprivation of a right secured by the Constitution or laws of the United

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States, but that defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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When filing his amended complaint asserting a claim under section 1983, if he chooses to

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do so, plaintiff is referred to Federal Rule of Civil Procedure 8. That Rule imposes the

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requirement of a short and plain statement which means a complaint must include “sufficient

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allegations to put defendants fairly on notice of the claims against them.” McKeever v. Block,

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932 F.2d 795, 798 (9th Cir. 1991); 5 C. Wright & A. Miller, Federal Practice and Procedure §

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1202 (2d ed. 1990). Accord Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir.

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1995) (amended complaint with vague and scanty allegations fails to satisfy the notice

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requirement of Rule 8.) Here, the complaint contains a narrative that does not contain sufficient

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specific allegations that put defendants fairly on notice. Plaintiff’s Complaint does not articulate

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how defendants’ actions violate his civil rights, i.e., what right was violated. He does not

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articulate the nature of the injury he suffered, i.e., personal injury, denial of health care services,

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discrimination based on status, such as religious belief, etc. See Conley v. Gibson, 355 U.S. 41,

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47 (1957); Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (vague and

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scanty allegations fail to satisfy the notice requirement of Rule 8).

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CONCLUSION

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Given the vague, threadbare state of plaintiff’s allegations, the court cannot permit the

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action to proceed as it is presently pleaded. Instead of dismissing the case with prejudice,

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however, plaintiff will be granted leave to file an amended complaint, if he can allege a

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cognizable legal theory against proper defendants and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint
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shall clearly set forth the claims and allegations against each defendant. Any amended complaint

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must cure the deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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In light of the foregoing, it is hereby ordered that:

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Plaintiff’s complaint is dismissed without prejudice;

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Plaintiff may file an amended complaint in compliance with the directions above

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within 30 days of the service of this Order;

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3.

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moot;

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4.

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Plaintiff’s Motion for an extension of time to file an amendment is DENIED as

Plaintiff is notified that failure to comply with this order may result in a

recommendation that his complaint be dismissed with prejudice.
IT IS SO ORDERED.
Dated: February 28, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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