Ortiz v. Experian Information Solutions, Inc. et al

Filing 3

ORDER signed by Magistrate Judge Deborah Barnes on 5/4/2017 DISMISSING 1 Complaint WITH LEAVE to amend. Within twenty-eight days from the date of this order, 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. Failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed. (Washington, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENE ORTIZ, 12 Plaintiff, 13 14 15 No. 2:17-cv-0529 MCE DB PS v. ORDER EXPERIAN INFORMATION SOLUTIONS, INC., CRAIG BOUND, 16 Defendants. 17 Plaintiff, Rene Ortiz, is proceeding in this action pro se. This matter was referred to the 18 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 20 before the court is plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 21 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains that the defendants reported 22 inaccurate information on plaintiff’s credit report. The court is required to screen complaints brought by parties proceeding in forma 23 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 26 below, plaintiff’s complaint will be dismissed with leave to amend. 27 //// 28 //// 1 1 2 I. Plaintiff’s Application to Proceed In Forma Pauperis Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 2 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 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. 7 8 9 10 11 Fed. R. Civ. P. 8(a). II. Plaintiff’s Complaint Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing 12 that plaintiff is entitled to relief. In this regard, plaintiff’s complaint alleges that defendant “CRA 13 prepared and issued consumer credit reports concerning plaintiff which include[d] inaccurate 14 information,” after plaintiff “notified CRA that he disputed the accuracy of the information it was 15 reporting.” (Compl. (ECF No. 1) at 5.) The complaint, however, fails to contain any factual 16 allegations in support of these vague and conclusory allegations. For example, the complaint fails 17 to allege when plaintiff discovered the alleged inaccurate information, when plaintiff contacted 18 the defendants, the nature of the information plaintiff conveyed to the defendants, and what 19 defendants did in response to plaintiff’s notification. Moreover, the complaint fails to allege any 20 allegations against defendant Craig Boundy. 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, the undersigned cannot yet say that it appears beyond doubt that leave to amend 19 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted 20 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file 21 an amended complaint “the tenet that a court must accept as true all of the allegations contained 22 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause 23 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. 24 “While legal conclusions can provide the complaint’s framework, they must be supported by 25 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line 26 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 27 28 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an amended complaint complete. Local Rule 220 requires that any amended complaint be complete 4 1 in itself without reference to prior pleadings. The amended complaint will supersede the original 2 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 3 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 4 and identified in the body of the complaint, and each claim and the involvement of each 5 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 6 must also include concise but complete factual allegations describing the conduct and events 7 which underlie plaintiff’s claims. 8 IV. 9 Accordingly, IT IS HEREBY ORDERED that: 10 11 Conclusion 1. The complaint filed March 13, 2017 (ECF No. 1) is dismissed with leave to amend. 1 12 2. Within twenty-eight days from the date of this order, an amended complaint shall be 13 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 14 Procedure and the Local Rules of Practice. 2 The amended complaint must bear the case number 15 assigned to this action and must be titled “Amended Complaint.” 16 3. Failure to comply with this order in a timely manner may result in a recommendation 17 that this action be dismissed. 18 DATED: May 4, 2017 19 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 1 Plaintiff need not file another application to proceed in forma pauperis at this time unless plaintiff’s financial condition has improved since the last such application was submitted. 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?