Kane v. State of California et al

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 6/19/2017; GRANTING 2 Motion to Proceed IFP. Plaintiff's complaint is DISMISSED with leave to amend. Within 28 days of this order, plaintiff shall file either a first amended complaint in compliance with this order or a request for voluntary dismissal of the action without prejudice. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL MICHAEL KANE,

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Plaintiff,

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No. 2:17-cv-1051-TLN-KJN PS

v.

ORDER

STATE OF CALIFORNIA, et al.,

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Defendants.

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Plaintiff Daniel Kane, who proceeds without counsel in this action, has requested leave to

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proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) Plaintiff’s application in

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support of his request to proceed in forma pauperis makes the showing required by 28 U.S.C.

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§ 1915. Accordingly, the court grants plaintiff’s request to proceed in forma pauperis.

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The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any

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time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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This action proceeds before the undersigned pursuant to Local Rule 302(c)(21).
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an immune defendant.

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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); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear

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that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma

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pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll

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v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th

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Cir. 1984).

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In this case, plaintiff’s complaint is rambling and vaguely describes interactions that

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plaintiff allegedly had with a wide variety of individuals at what appears to be courthouses,

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shelters, and private businesses in the Sacramento area. The court finds the allegations in

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plaintiff’s complaint so vague and conclusory that it is unable to determine whether the current
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action is frivolous or fails to state a claim for relief. More specifically, the complaint fails to

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identify the specific claims being alleged against each named defendant, and fails to allege non-

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conclusory facts that, if accepted as true, would allow the court to draw a reasonable inference

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that the named defendants are liable for such claims.

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In light of the above, the court dismisses plaintiff’s complaint, but with leave to amend.

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If plaintiff elects to file an amended complaint, it shall be captioned “First Amended Complaint”;

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shall address the deficiencies outlined above; and shall be filed within 28 days of this order.

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Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order
to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint, and once the first amended complaint is

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filed, the original complaint no longer serves any function in the case.

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Finally, nothing in this order requires plaintiff to file a first amended complaint. If

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plaintiff determines that he is unable to amend his complaint to state a viable claim in accordance

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with his obligations under Federal Rule of Civil Procedure 11, he may alternatively file a notice

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of voluntary dismissal of his claims without prejudice pursuant to Federal Rule of Civil Procedure

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41(a)(1)(A)(i) within 28 days of this order.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s complaint is dismissed with leave to amend.

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3. Within 28 days of this order, plaintiff shall file either a first amended complaint in

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compliance with this order or a request for voluntary dismissal of the action without

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prejudice.

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4. Failure to timely comply with this order may result in dismissal of the action with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: June 19, 2017

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