Sharp et al v. Powers et al

Filing 3

ORDER signed by Magistrate Judge Deborah Barnes on 5/2/2017 ORDERING that the complaint filed 2/6/2017 (ECF No. 1 ) is DISMISSED WITH LEAVE TO AMEND; Within twenty-eight days, an amended complaint shall be filed that cures the defects noted in this order and complies with the Federal Rules of Civil Procedure and the Local Rules of Practice; The amended complaint must bear the case number assigned to this action and must be titled "Amended Complaint;" Failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed.(Becknal, R)

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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 SHARP, CALYSTA, et al., 12 Plaintiffs, 13 14 No. 2:17-cv-0255 KJM DB PS v. ORDER POWERS, TERESA, et al., 15 Defendants. 16 Plaintiffs, Caitlyn Howard and Calysta Sharp, are proceeding in this action pro se. This 17 18 matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 19 636(b)(1). Pending before the court are plaintiffs’ complaint and plaintiff Calysta Sharp’s motion 20 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) The court is required to screen complaints brought by parties proceeding in forma 21 22 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 23 2000) (en banc). Here, plaintiffs’ complaint is deficient. Accordingly, for the reasons stated 24 below, plaintiffs’ complaint will be dismissed with leave to amend. 25 I. 26 Plaintiffs’ Applications to Proceed In Forma Pauperis Filing fees must be paid unless each plaintiff applies for and is granted leave to proceed in 27 forma pauperis. Here, plaintiff Caitlyn Howard has not submitted an application to proceed in 28 forma pauperis. 1 1 Plaintiff Calysta Sharp’s in forma pauperis application does make the financial showing 2 required by 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies 3 financially for in forma pauperis status does not complete the inquiry required by the statute. “‘A 4 district court may deny leave to proceed in forma pauperis at the outset if it appears from the face 5 of the proposed complaint that the action is frivolous or without merit.’” Minetti v. Port of 6 Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 7 1368, 1370 (9th Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. 8 Appx. 638 (9th Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s 9 request to proceed IFP because it appears from the face of the amended complaint that McGee’s 10 action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is 11 the duty of the District Court to examine any application for leave to proceed in forma pauperis to 12 determine whether the proposed proceeding has merit and if it appears that the proceeding is 13 without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 14 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 15 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 16 state a claim on which relief may be granted, or seeks monetary relief against an immune 17 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 18 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 19 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 20 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 21 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 22 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 23 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 24 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 25 true the material allegations in the complaint and construes the allegations in the light most 26 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 27 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 28 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 1 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 2 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 3 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 4 The minimum requirements for a civil complaint in federal court are as follows: 5 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. 6 7 8 Fed. R. Civ. P. 8(a). 9 II. 10 Plaintiffs’ Complaint Here, plaintiffs’ complaint fails to contain a short and plain statement of a claim showing 11 that plaintiff is entitled to relief. In this regard, plaintiffs’ complaint is entirely devoid of any 12 factual allegations or clearly asserted causes of action. Although the Federal Rules of Civil 13 Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the 14 plaintiff’s claims and must allege facts that state the elements of each claim plainly and 15 succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th 16 Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the 17 elements of cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked 18 assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) 19 (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of 20 particularity overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 21 733 F.2d at 649. 22 Moreover, plaintiffs’ complaint is signed only by plaintiff Calysta Sharp. However, the 23 right to represent oneself pro se is personal to the plaintiff and does not extend to other parties. 24 Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008); see also Russell v. United States, 25 308 F.2d 78, 79 (9th Cir. 1962) (“A litigant appearing in propria persona has no authority to 26 represent anyone other than himself.”). A non-attorney “has no authority to appear as an attorney 27 for others than himself.” C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987). 28 Individuals who are representing themselves in this court may not delegate the litigation of their 3 1 claims to any other individual. Local Rule 183(a). Accordingly, all pleadings and non- 2 evidentiary documents filed with the court must be signed by each pro se party. See Local Rule 3 131(b). 4 5 Accordingly, plaintiffs’ complaint will be dismissed for failure to state a cognizable claim. III. 6 Leave to Amend The undersigned has carefully considered whether plaintiffs may amend the complaint to 7 state a claim upon which relief can be granted. “Valid reasons for denying leave to amend 8 include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. 9 Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n 10 v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to 11 amend shall be freely given, the court does not have to allow futile amendments). 12 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 13 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 14 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 15 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972); see also Weilburg v. 16 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 17 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 18 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 19 1988)). 20 Here, given the complaint’s total lack of allegations, the undersigned cannot yet say that it 21 appears beyond doubt that leave to amend would be futile. Plaintiffs’ complaint will therefore be 22 dismissed, and plaintiffs will be granted leave to file an amended complaint. Plaintiffs are 23 cautioned, however, that if plaintiffs elect to file an amended complaint “the tenet that a court 24 must accept as true all of the allegations contained in a complaint is inapplicable to legal 25 conclusions. Threadbare recitals of the elements of a cause of action, supported by mere 26 conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While legal conclusions can 27 provide the complaint’s framework, they must be supported by factual allegations.” Id. at 679. 28 Those facts must be sufficient to push the claims “across the line from conceivable to 4 1 plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 2 Plaintiffs are also reminded that the court cannot refer to a prior pleading in order to make 3 an amended complaint complete. Local Rule 220 requires that any amended complaint be 4 complete in itself without reference to prior pleadings. The amended complaint will supersede 5 the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended 6 complaint, just as if it were the initial complaint filed in the case, each defendant must be listed in 7 the caption and identified in the body of the complaint, and each claim and the involvement of 8 each defendant must be sufficiently alleged. Any amended complaint which plaintiffs may elect 9 to file must also include concise but complete factual allegations describing the conduct and 10 events which underlie plaintiffs’ claims. 11 IV. Conclusion 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The complaint filed February 6, 2017 (ECF No. 1) is dismissed with leave to 14 amend. 1 15 2. Within twenty-eight days from the date of this order, an amended complaint shall be 16 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 17 Procedure and the Local Rules of Practice. 2 The amended complaint must bear the case number 18 assigned to this action and must be titled “Amended Complaint.” 3 19 3. Failure to comply with this order in a timely manner may result in a recommendation 20 that this action be dismissed. 21 DATED: May 2, 2017 22 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 23 24 1 25 26 27 28 Plaintiff Calysta Sharp need not file another application to proceed in forma pauperis at this time unless plaintiff Sharp’s financial condition has improved since the last such application was submitted. 2 Alternatively, if plaintiffs no longer wish to pursue this action plaintiffs may file a notice of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure. 3 If plaintiffs elect to file an amended complaint, plaintiff Caitlyn Howard shall either file an application to proceed in forma pauperis or pay the applicable filing fee. 5

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