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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AKIKA PARKER, 12 Plaintiff, 13 14 No. 2:17-cv-0192 GEB DB PS v. ORDER J.P. MORGAN & CHASE BANKE, INC., 15 Defendant. 16 Plaintiff, Akika Parker, is proceeding in this action pro se. This matter was referred to the 17 18 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the court is plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 20 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about “unfair treatment from 21 Chase bank.” (Compl. (ECF No. 1) at 8.) The court is required to screen complaints brought by parties proceeding in forma 22 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s application to proceed in forma pauperis and complaint are 25 deficient. Accordingly, for the reasons stated below, plaintiff’s application to proceed in forma 26 pauperis will be denied without prejudice and plaintiff’s complaint will be dismissed with leave 27 to amend. 28 //// 1 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application is incomplete. In this regard, plaintiff’s in forma 3 pauperis application states that in the last twelve months plaintiff received money from business, 4 profession, or other self-employment, as well as from other sources. Plaintiff, however, failed to 5 answer how much money was received and if the receipt of that money is expected to continue. 6 (ECF No. 2 at 1.) Moreover, even a determination that a plaintiff qualifies financially for in 7 forma pauperis status does not complete the inquiry required by the statute. 8 “‘A district court may deny leave to proceed in forma pauperis at the outset if it appears 9 from the face of the proposed complaint that the action is frivolous or without merit.’” Minetti v. 10 Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 11 821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee v. Department of Child Support Services, 12 584 Fed. Appx. 638 (9th Cir. 2014) (“the district court did not abuse its discretion by denying 13 McGee’s request to proceed IFP because it appears from the face of the amended complaint that 14 McGee’s action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 15 1965) (“It is the duty of the District Court to examine any application for leave to proceed in 16 forma pauperis to determine whether the proposed proceeding has merit and if it appears that the 17 proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in 18 forma pauperis.”). 19 The court must dismiss an in forma pauperis case at any time if the allegation of poverty is 20 found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a 21 claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 22 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or 23 in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 24 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous 25 where it is based on an indisputably meritless legal theory or where the factual contentions are 26 clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 27 28 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, 2 1 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 2 true the material allegations in the complaint and construes the allegations in the light most 3 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 4 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 5 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 6 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 7 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 8 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 9 The minimum requirements for a civil complaint in federal court are as follows: 10 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. 11 12 13 Fed. R. Civ. P. 8(a). 14 II. 15 Plaintiff’s Complaint Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing 16 that plaintiff is entitled to relief. In this regard, plaintiff’s complaint alleges that “Chase froze her 17 account with a sequence number of over 260000000.00,” and that the “account has grown to over 18 6 zillion, [and] the bank is trying to cover it up!” (Id.) It is entirely unclear, however, when these 19 events occurred, where they occurred, who was involved, and what claim plaintiff is asserting 20 against the defendant. 21 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 22 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 23 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 24 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 25 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 26 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 27 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 28 557). A plaintiff must allege with at least some degree of particularity overt acts which the 3 1 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 2 3 Accordingly, plaintiff’s complaint will be dismissed for failure to state a cognizable claim. III. 4 Leave to Amend The undersigned has carefully considered whether plaintiff may amend the complaint to 5 state a claim upon which relief can be granted. “Valid reasons for denying leave to amend 6 include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. 7 Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n 8 v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to 9 amend shall be freely given, the court does not have to allow futile amendments). 10 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 11 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 12 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 13 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972); see also Weilburg v. 14 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 15 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 16 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 17 1988)). 18 Here, given the vague and conclusory nature of the complaint’s allegations, the 19 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. 20 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an 21 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended 22 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint 23 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 24 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While 25 legal conclusions can provide the complaint’s framework, they must be supported by factual 26 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from 27 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 28 //// 4 1 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 2 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 3 in itself without reference to prior pleadings. The amended complaint will supersede the original 4 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 5 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 6 and identified in the body of the complaint, and each claim and the involvement of each 7 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 8 must also include concise but complete factual allegations describing the conduct and events 9 which underlie plaintiff’s claims. 10 IV. Conclusion 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s January 27, 2017 motion to proceed in forma pauperis (ECF No. 2) is denied 13 without prejudice. 14 15 2. The complaint filed January 27, 2017 (ECF No. 1) is dismissed with leave to amend. 1 16 3. Within twenty-eight days from the date of this order, an amended complaint shall be 17 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 18 Procedure and the Local Rules of Practice. 2 The amended complaint must bear the case number 19 assigned to this action and must be titled “Amended Complaint.” 20 4. Failure to comply with this order in a timely manner may result in a recommendation 21 that this action be dismissed. 22 DATED: May 2, 2017 23 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 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. 2 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. 5

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