Parker v. J.P. Morgan et al

Filing 6

ORDER signed by Magistrate Judge Deborah Barnes on 5/2/2017 ORDERING that Plaintiff's 2 Motion to Proceed IFP is DENIED without prejudice. The 1 complaint is DISMISSED with leave to amend. If plaintiff elects to file an amended complaint, plaintiff must either file a completed application to proceed in forma pauperis or pay the applicable filing fee. Within 28 days Plaintiff may file an amended complaint. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AKIKA PARKER,

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Plaintiff,

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No. 2:17-cv-0192 GEB DB PS

v.

ORDER

J.P. MORGAN & CHASE BANKE, INC.,

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Defendant.

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Plaintiff, Akika Parker, is proceeding in this action pro se. This matter was referred to the

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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 “unfair treatment from

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Chase bank.” (Compl. (ECF No. 1) at 8.)
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 application to proceed in forma pauperis and complaint are

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deficient. Accordingly, for the reasons stated below, plaintiff’s application to proceed in forma

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pauperis will be denied without prejudice and plaintiff’s complaint will be dismissed with leave

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to amend.

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I.

Plaintiff’s Application to Proceed In Forma Pauperis

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Plaintiff’s in forma pauperis application is incomplete. In this regard, plaintiff’s in forma

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pauperis application states that in the last twelve months plaintiff received money from business,

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profession, or other self-employment, as well as from other sources. Plaintiff, however, failed to

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answer how much money was received and if the receipt of that money is expected to continue.

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(ECF No. 2 at 1.) Moreover, even a determination that a plaintiff qualifies financially for in

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forma pauperis status does not complete the inquiry required by the statute.

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“‘A district court may deny leave to proceed in forma pauperis at the outset if it appears

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from the face of the proposed complaint that the action is frivolous or without merit.’” Minetti v.

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Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust,

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821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee v. Department of Child Support Services,

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584 Fed. Appx. 638 (9th Cir. 2014) (“the district court did not abuse its discretion by denying

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McGee’s request to proceed IFP because it appears from the face of the amended complaint that

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McGee’s action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

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1965) (“It is the duty of the District Court to examine any application for leave to proceed in

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forma pauperis to determine whether the proposed proceeding has merit and if it appears that the

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proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in

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forma pauperis.”).

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The court must dismiss an in forma pauperis case at any time if the allegation of poverty is

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found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a

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claim on which relief may be granted, or seeks monetary relief against an immune defendant. See

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28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or

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in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

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1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous

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where it is based on an indisputably meritless legal theory or where the factual contentions are

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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
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).

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II.

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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 “Chase froze her

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account with a sequence number of over 260000000.00,” and that the “account has grown to over

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6 zillion, [and] the bank is trying to cover it up!” (Id.) It is entirely unclear, however, when these

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events occurred, where they occurred, who was involved, and what claim plaintiff is asserting

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against the defendant.

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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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Accordingly, plaintiff’s complaint will be dismissed for failure to state a cognizable claim.
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 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. Plaintiff’s January 27, 2017 motion to proceed in forma pauperis (ECF No. 2) is denied

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without prejudice.

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2. The complaint filed January 27, 2017 (ECF No. 1) is dismissed with leave to
amend. 1

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3. Within twenty-eight days from the date of this order, an amended complaint shall be

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filed that cures the defects noted in this order and complies with the Federal Rules of Civil

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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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4. 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: May 2, 2017

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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If plaintiff elects to file an amended complaint, plaintiff must either file a completed application
to proceed in forma pauperis or pay the applicable filing fee.
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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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