Wickland v. The Justice Department of the United States of America et al

Filing 7

ORDER signed by Magistrate Judge Deborah Barnes on 9/25/2017 ORDERING the complaint 1 is DISMISSED with Leave to amend; within 28 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. (Reader, 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 MICHAEL EDWARD WICKLAND, 12 Plaintiff, 13 14 15 No. 2:17-cv-0933 MCE DB PS v. ORDER THE JUSTICE DEPARTMENT OF THE UNITED STATES OF AMERICA, 16 Defendants. 17 Plaintiff, Michael Wickland, is proceeding in this action pro se. This matter was referred 18 19 to the 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 state court criminal 22 proceedings. 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 Fed. R. Civ. P. 8(a). II. Plaintiff’s Complaint 11 As noted below, plaintiff’s complaint is deficient in several respects. 12 A) 13 Plaintiff’s complaint fails to contain a short and plain statement of a claim showing that Rule 8 14 plaintiff is entitled to relief. In this regard, plaintiff’s complaint fails to allege a cause of action. 15 Instead, the complaint generally consists of a two-page recounting of mistreatment plaintiff 16 allegedly received pursuant to an arrest in Alabama. (Compl. (ECF No. 1) at 7-8.) The 17 complaint, however, fails to assert a cause of action against a named defendant. 18 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 19 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 20 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 21 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 22 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 23 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 24 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 25 557). A plaintiff must allege with at least some degree of particularity overt acts which the 26 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 27 //// 28 //// 3 1 B) 2 The complaint makes a vague and conclusory allegation with respect to plaintiff’s “rights” 3 and the “Constitution of The United States of America Amendment VI.” (Compl. (ECF No. 1) at 4 6.) Title 42 U.S.C. § 1983 provides that, 5 [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. 6 7 42 U.S.C. § 1983 does not contain a specific statute of limitations. “Without a federal 8 9 Statute of Limitations limitations period, the federal courts ‘apply the forum state’s statute of limitations for personal 10 injury actions, along with the forum state’s law regarding tolling, including equitable tolling, 11 except to the extent any of these laws is inconsistent with federal law.’” Butler v. National 12 Community Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v. 13 Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007)); see also Jones v. Blanas, 393 F.3d 918, 927 14 (9th Cir. 2004). Before 2003, California’s statute of limitations for personal injury actions was 15 one year. See Jones, 393 F.3d at 927. Effective January 1, 2003, however, in California that 16 limitations period became two years. See id.; Cal. Code Civ. P. § 335.1. Here, it appears the only dates alleged in the complaint are “May 4, 2008,” and “Talladega 17 18 Alabama 2008.” This action was filed on May 3, 2017. (ECF No. 1.) 19 C) Judicial Immunity 20 Although the “Justice Department of the United States of America,” is listed in the 21 complaint’s capitation, the only defendant identified in the complaint is “Williams E. 22 Hollingsworth III, Circuit Judge, Talladega Talladega, Alabama.” (Compl. (ECF No. 1) at 3.) 23 Plaintiff is advised that “[j]udges are absolutely immune from damage actions for judicial acts 24 taken within the jurisdiction of their courts . . . . A judge loses absolute immunity only when [the 25 judge] acts in the clear absence of all jurisdiction or performs an act that is not judicial in nature.” 26 Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per curiam). 27 //// 28 //// 4 1 III. Leave to Amend For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 2 3 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 4 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 5 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 6 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 7 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 8 court does not have to allow futile amendments). 9 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 10 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 11 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 12 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 13 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 14 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 15 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 16 1988)). 17 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend 18 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted 19 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file 20 an amended complaint “the tenet that a court must accept as true all of the allegations contained 21 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause 22 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. 23 “While legal conclusions can provide the complaint’s framework, they must be supported by 24 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line 25 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 26 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 27 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 28 in itself without reference to prior pleadings. The amended complaint will supersede the original 5 1 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 2 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 3 and identified in the body of the complaint, and each claim and the involvement of each 4 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 5 must also include concise but complete factual allegations describing the conduct and events 6 which underlie plaintiff’s claims. 7 IV. Conclusion 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The complaint filed May 3, 2017 (ECF No. 1) is dismissed with leave to 10 amend.1 11 2. Within twenty-eight days from the date of this order, an amended complaint shall be 12 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 13 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number 14 assigned to this action and must be titled “Amended Complaint.” 15 3. Failure to comply with this order in a timely manner may result in a recommendation 16 that this action be dismissed. 17 Dated: September 25, 2017 18 19 20 21 22 23 DLB:6 DB\orders\orders.pro se\wickland0933.dism.lta.ord 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. 6

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