Smith v. Milligan et al

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 7/20/17 ORDERING that Plaintiff's Request to Proceed IFP 2 is DENIED without prejudice to its renewal in proper form. The Complaint 1 is DISMISSED with leave to amend. Plaintiff must file his renewed IFP application and amended complaint within 30 days of the date of this order. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES R. SMITH,

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Plaintiff,

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No. 2:17-cv-0582 KJM AC PS

v.

ORDER

MILLIGAN, et. al.,

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Defendants.

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Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

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undersigned by E.D. Cal. R. (“Local Rule”) 302(c)(21). Plaintiff has also requested leave to

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proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 2. The request will be denied

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because plaintiff’s IFP affidavit fails to establish that he cannot afford the filing fee.

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I. INSUFFICIENT INFORMATION IN THE IFP APPLICATION

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According to the application, plaintiff received money from “disability or workers

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compensation payments” during the past 12 months. ECF No. 2 at 1 ¶ 3. However, plaintiff fails

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to disclose “the amount received and what you expect you will receive.” See id. at 1-2. Because

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of this omission, plaintiff’s application fails to establish that he is entitled to prosecute this case

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without paying the required fees.

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II. SCREENING STANDARDS

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The IFP statute requires federal courts to dismiss a case if the action is legally “frivolous”

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or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). Plaintiff must

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assist the court in determining whether the complaint is frivolous or not, by drafting the complaint

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so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Under the

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Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain statement” of

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the basis for federal jurisdiction (that is, the reason the case is filed in this court, rather than in a

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state court), (2) a short and plain statement showing that plaintiff is entitled to relief (that is, who

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harmed the plaintiff, and in what way), and (3) a demand for the relief sought. ed. R. Civ. P.

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(“Rule”) 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. Rule 8(d)(1).

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The federal IFP statute requires federal courts to dismiss a case if the action is legally “frivolous

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or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327;

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Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at

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Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler,

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627 F.3d 338, 340 (9th Cir. 2010). However, the court need not accept as true, legal conclusions

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cast in the form of factual allegations, or allegations that contradict matters properly subject to

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judicial notice. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981);

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Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187

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(2001).

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III. THE COMPLAINT
The complaint alleges that on May 24, 2016, plaintiff experienced a seizure when he was
“at [his] gate pushing [his] number.” ECF No. 1 at 5 ¶ III. It seems that when plaintiff’s manager
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called the ambulance, the police also arrived. Id. Plaintiff was asked by “the police” “to put [his]

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hand behind [his] back” because he was under arrest. Id. When plaintiff asked “him” “why what

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did I do wrong,” plaintiff was “teased”1 and taken to jail. Id. As “relief,” plaintiff asks for

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$100,000. Id. at 6 ¶ IV.

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The complaint does not contain a “short and plain statement” setting forth the basis for

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plaintiff’s claim (that is, who did what to plaintiff) as required by Fed. R. Civ. P. 8(a)(2).

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Although the complaint suggests that plaintiff may be attempting to assert a claim under 42

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U.S.C. § 1983 for use of excessive force and unlawful arrest in violation of the Fourth

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Amendment to the U.S Constitution, the court cannot decipher which defendant inflicted the

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alleged harm on the plaintiff. Accordingly, the complaint must be dismissed for failure to state a

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claim.

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IV.

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AMENDING THE COMPLAINT

Plaintiff will be provided an opportunity to amend his complaint. The court will therefore
provide guidance for amendment.

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The amended complaint must contain a short and plain statement of plaintiff’s claims.

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That is, it must state what the defendant did that harmed the plaintiff. The amended complaint

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must not force the court and the defendants to guess at what is being alleged against whom. See

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McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal of a complaint where

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the district court was “literally guessing as to what facts support the legal claims being asserted

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against certain defendants”).

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In setting forth the facts, plaintiff must not go overboard, however. He must avoid

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excessive repetition of the same allegations. He must avoid narrative and storytelling. That is,

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the complaint should not include every detail of what happened, nor recount the details of

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conversations (unless necessary to establish the claim), nor give a running account of plaintiff’s

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hopes and thoughts. Rather, the amended complaint should contain only those facts needed to

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show how the defendant legally wronged the plaintiff.

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The court is unsure whether plaintiff means to allege that he was verbally taunted or that a
Taser was used to subdue him.
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Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s

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amended complaint complete. An amended complaint must be complete in itself without

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reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended

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complaint supersedes the original complaint. See Pacific Bell Telephone Co. v. Linkline

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Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint

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supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &

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Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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V. CONCLUSION

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For the reasons explained above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is DENIED without

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prejudice to its renewal in proper form, as explained above.

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2. The complaint (ECF No. 1), is DISMISSED with leave to amend.

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3. Plaintiff must file his renewed IFP application and amended complaint within 30 days

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of the date of this order. If plaintiff files an amended complaint, he must comply with the

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instructions given above. If plaintiff fails to timely comply with this order, the undersigned may

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recommend that this action be dismissed.

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DATED: July 20, 2017

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