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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES R. SMITH, 12 Plaintiff, 13 14 No. 2:17-cv-0582 KJM AC PS v. ORDER MILLIGAN, et. al., 15 Defendants. 16 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 17 18 undersigned by E.D. Cal. R. (“Local Rule”) 302(c)(21). Plaintiff has also requested leave to 19 proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 2. The request will be denied 20 because plaintiff’s IFP affidavit fails to establish that he cannot afford the filing fee. 21 I. INSUFFICIENT INFORMATION IN THE IFP APPLICATION 22 According to the application, plaintiff received money from “disability or workers 23 compensation payments” during the past 12 months. ECF No. 2 at 1 ¶ 3. However, plaintiff fails 24 to disclose “the amount received and what you expect you will receive.” See id. at 1-2. Because 25 of this omission, plaintiff’s application fails to establish that he is entitled to prosecute this case 26 without paying the required fees. 27 //// 28 //// 1 1 II. SCREENING STANDARDS 2 The IFP statute requires federal courts to dismiss a case if the action is legally “frivolous” 3 or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). Plaintiff must 4 assist the court in determining whether the complaint is frivolous or not, by drafting the complaint 5 so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Under the 6 Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain statement” of 7 the basis for federal jurisdiction (that is, the reason the case is filed in this court, rather than in a 8 state court), (2) a short and plain statement showing that plaintiff is entitled to relief (that is, who 9 harmed the plaintiff, and in what way), and (3) a demand for the relief sought. ed. R. Civ. P. 10 (“Rule”) 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. Rule 8(d)(1). 11 The federal IFP statute requires federal courts to dismiss a case if the action is legally “frivolous 12 or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief 13 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 14 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 15 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 16 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 17 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 18 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; 19 Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at 20 Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler, 21 627 F.3d 338, 340 (9th Cir. 2010). However, the court need not accept as true, legal conclusions 22 cast in the form of factual allegations, or allegations that contradict matters properly subject to 23 judicial notice. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); 24 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 25 (2001). 26 27 28 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 2 1 called the ambulance, the police also arrived. Id. Plaintiff was asked by “the police” “to put [his] 2 hand behind [his] back” because he was under arrest. Id. When plaintiff asked “him” “why what 3 did I do wrong,” plaintiff was “teased”1 and taken to jail. Id. As “relief,” plaintiff asks for 4 $100,000. Id. at 6 ¶ IV. 5 The complaint does not contain a “short and plain statement” setting forth the basis for 6 plaintiff’s claim (that is, who did what to plaintiff) as required by Fed. R. Civ. P. 8(a)(2). 7 Although the complaint suggests that plaintiff may be attempting to assert a claim under 42 8 U.S.C. § 1983 for use of excessive force and unlawful arrest in violation of the Fourth 9 Amendment to the U.S Constitution, the court cannot decipher which defendant inflicted the 10 alleged harm on the plaintiff. Accordingly, the complaint must be dismissed for failure to state a 11 claim. 12 IV. 13 14 AMENDING THE COMPLAINT Plaintiff will be provided an opportunity to amend his complaint. The court will therefore provide guidance for amendment. 15 The amended complaint must contain a short and plain statement of plaintiff’s claims. 16 That is, it must state what the defendant did that harmed the plaintiff. The amended complaint 17 must not force the court and the defendants to guess at what is being alleged against whom. See 18 McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal of a complaint where 19 the district court was “literally guessing as to what facts support the legal claims being asserted 20 against certain defendants”). 21 In setting forth the facts, plaintiff must not go overboard, however. He must avoid 22 excessive repetition of the same allegations. He must avoid narrative and storytelling. That is, 23 the complaint should not include every detail of what happened, nor recount the details of 24 conversations (unless necessary to establish the claim), nor give a running account of plaintiff’s 25 hopes and thoughts. Rather, the amended complaint should contain only those facts needed to 26 show how the defendant legally wronged the plaintiff. 27 28 1 The court is unsure whether plaintiff means to allege that he was verbally taunted or that a Taser was used to subdue him. 3 1 Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s 2 amended complaint complete. An amended complaint must be complete in itself without 3 reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended 4 complaint supersedes the original complaint. See Pacific Bell Telephone Co. v. Linkline 5 Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint 6 supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice & 7 Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an 8 original complaint, each claim and the involvement of each defendant must be sufficiently 9 alleged. 10 V. CONCLUSION 11 For the reasons explained above, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is DENIED without 13 prejudice to its renewal in proper form, as explained above. 14 2. The complaint (ECF No. 1), is DISMISSED with leave to amend. 15 3. Plaintiff must file his renewed IFP application and amended complaint within 30 days 16 of the date of this order. If plaintiff files an amended complaint, he must comply with the 17 instructions given above. If plaintiff fails to timely comply with this order, the undersigned may 18 recommend that this action be dismissed. 19 DATED: July 20, 2017 20 21 22 23 24 25 26 27 28 4

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