Dodenhoff v. Department of the Treasury, et al.

Filing 3

ORDER signed by Magistrate Judge Carolyn K. Delaney on 04/26/17 ORDERING that plaintiff's 2 Motion to Proceed IFP is GRANTED; the Complaint is DISMISSED with 30 days LEAVE to AMEND. (Benson, A)

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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 DENNIS DODENHOFF, 12 13 14 No. 2:17-cv-0831 TLN CKD (PS) Plaintiff, v. ORDER DEPARTMENT OF TREASURY, et al., 15 Defendants. 16 17 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 18 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by 19 Local Rule 302(c)(21). 20 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable 21 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 22 pauperis will be granted. 28 U.S.C. § 1915(a). 23 The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 24 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 25 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 26 § 1915(e)(2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. 4 In order to avoid dismissal for failure to state a claim a complaint must contain more than 5 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 6 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim 9 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 10 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 12 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 13 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 14 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 15 U.S. 232, 236 (1974). 16 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 17 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 18 court has determined that the complaint does not contain a short and plain statement as required 19 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 20 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 21 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at 22 least some degree of particularity overt acts which defendants engaged in that support plaintiff’s 23 claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), 24 the complaint must be dismissed. The court will, however, grant leave to file an amended 25 complaint. 26 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional 27 grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a). 28 Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation 2 1 2 of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). It appears that plaintiff may be trying to state a claim under 42 U.S.C. § 1983. That 3 statute, however, is applicable only to state actors. For constitutional deprivations by federal 4 officials, plaintiff must state a claim as a Bivens action. See Bivens v. Six Unknown Named 5 Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 6 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 7 make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended 8 complaint be complete in itself without reference to any prior pleading. This is because, as a 9 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 10 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 11 longer serves any function in the case. Therefore, in an amended complaint, as in an 12 original complaint, each claim and the involvement of each defendant must be sufficiently 13 alleged. 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request to proceed in forma pauperis is granted; 16 2. Plaintiff’s complaint is dismissed; and 17 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 18 complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the 19 Local Rules of Practice; the amended complaint must bear the docket number assigned this case 20 and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the 21 amended complaint; failure to file an amended complaint in accordance with this order will result 22 in a recommendation that this action be dismissed. 23 Dated: April 26, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 24 25 26 4 dodenhoff0831.ifp-lta 27 28 3

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