Allen v. Burnside et al

Filing 6

ORDER signed by Magistrate Judge Deborah Barnes on 9/27/17 ORDERING that the complaint filed 3/21/17 1 is DISMISSED 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 FRCP 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. (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 LEON ALLEN, 12 Plaintiff, 13 14 15 No. 2:17-cv-0602 KJM DB PS v. ORDER NINA BURNSIDE dba Soul Legacy Entertainment, et al., 16 Defendants. 17 Plaintiff, Leon Allen, 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 about an “interest in the real 22 property which is the subject matter of this action . . . 3801 Florin Rd., Sacramento, CA, 95823.” 23 (Compl. (ECF No. 1) at 4.) The court is required to screen complaints brought by parties proceeding in forma 24 25 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 26 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 27 below, plaintiff’s complaint will be dismissed with leave to amend. 28 //// 1 1 I. 2 Plaintiff’s Application to Proceed In Forma Pauperis The court is required to screen complaints brought by parties proceeding in forma 3 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 4 2000) (en banc). “‘A district court may deny leave to proceed in forma pauperis at the outset if it 5 appears from the face of the proposed complaint that the action is frivolous or without merit.’” 6 Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank 7 & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee v. Department of Child Support 8 Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the district court did not abuse its discretion by 9 denying McGee’s request to proceed IFP because it appears from the face of the amended 10 complaint that McGee’s action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 11 116 (9th Cir. 1965) (“It is the duty of the District Court to examine any application for leave to 12 proceed in forma pauperis to determine whether the proposed proceeding has merit and if it 13 appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to 14 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 II. 24 Plaintiff’s Complaint Jurisdiction is a threshold inquiry that must precede the adjudication of any case before 25 the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 26 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate 27 only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 28 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are presumed 2 1 to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 2 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 3 546 (1986)). 4 Lack of subject matter jurisdiction may be raised by the court at any time during the 5 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 6 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has 7 subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the 8 obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v. 9 Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court 10 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380. 11 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer 12 “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be 13 conferred by federal statutes regulating specific subject matter. “[T]he existence of federal 14 jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to 15 those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 16 1108, 1113 (9th Cir. 2000). District courts have diversity jurisdiction only over “all civil actions where the matter in 17 18 controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action 19 is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a 20 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are 21 additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different 22 States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be 23 a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss, 24 797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between 25 the parties-each defendant must be a citizen of a different state from each plaintiff.” In re 26 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). 27 //// 28 //// 3 Here, plaintiff’s complaint alleges that it is brought pursuant to 42 U.S.C. § 1983. 1 2 (Compl. (ECF No. 1) at 3-4.) Title 42 U.S.C. § 1983 provides that, 3 [e]very person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 4 5 6 The allegations of plaintiff’s complaint, however, fail to allege that any defendant acted 7 under the color of state law. In this regard, the defendants are identified as private individuals, 8 not state actors. (Compl. (ECF No. 1) at 2.) Moreover, plaintiff and every defendant are alleged 9 to be citizens of the same state—California. (Id.) Accordingly, plaintiff’s complaint fails to 10 allege a basis for subject matter jurisdiction over this action. 11 III. Leave to Amend For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 12 13 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 14 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 15 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 16 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 17 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 18 court does not have to allow futile amendments). 19 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 20 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 21 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 22 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 23 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 24 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 25 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 26 1988)). 27 28 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted 4 1 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file 2 an amended complaint “the tenet that a court must accept as true all of the allegations contained 3 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause 4 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. 5 “While legal conclusions can provide the complaint’s framework, they must be supported by 6 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line 7 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 8 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 9 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 10 in itself without reference to prior pleadings. The amended complaint will supersede the original 11 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 12 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 13 and identified in the body of the complaint, and each claim and the involvement of each 14 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 15 must also include concise but complete factual allegations describing the conduct and events 16 which underlie plaintiff’s claims. 17 IV. Conclusion 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The complaint filed March 21, 2017 (ECF No. 1) is dismissed with leave to 20 amend.1 21 2. Within twenty-eight days from the date of this order, an amended complaint shall be 22 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 23 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number 24 assigned to this action and must be titled “Amended Complaint.” 25 //// 26 1 27 28 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 1 3. Failure to comply with this order in a timely manner may result in a recommendation 2 that this action be dismissed. 3 Dated: September 27, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DLB:6 DB\orders\orders.pro se\allen0602.dism.lta.ord 23 24 25 26 27 28 6

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