Engelbrecht v. Kern County Tax Assessor

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 6/16/2017 GRANTING 2 Motion to Proceed IFP; DISMISSING the 1 Complaint for failure to state a claim that can be heard by this court; GRANTING the plaintiff thirty (30) days to file an amended complaint; CAUTIONING the plaintiff that a failure to timely comply with this order may result in a recommendation that this action be dismissed. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONYA ENGELBRECHT,

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Plaintiff,

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v.

No. 2:17-cv-01229 KJM AC (PS)

ORDER

KERN COUNTY TAX ASSESSOR,
Defendant.

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Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

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undersigned by E.D. Cal. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma

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pauperis (“IFP”) pursuant to 28 U.S.C. § 1915, and has submitted the affidavit required by that

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statute. See 28 U.S.C. § 1915(a)(1). The motion to proceed IFP will therefore be granted.

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I. SCREENING

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Granting IFP status does not end the court’s inquiry. The federal IFP statute requires

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federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to state a

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claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915(e)(2).

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Plaintiff must assist the court in determining whether the complaint is frivolous or not, by

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drafting the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ.

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P.”). The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules1

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policies/current-rules-practice-procedure/federal-rules-civil-procedure. Under the Federal Rules

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of Civil Procedure, the complaint must contain (1) a “short and plain statement” of the basis for

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federal jurisdiction (that is, the reason the case is filed in this court, rather than in a state court),

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(2) a short and plain statement showing that plaintiff is entitled to relief (that is, who harmed the

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plaintiff, and in what way), and (3) a demand for the relief sought. Fed. R. Civ. P. (“Rule”) 8(a).

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Plaintiff’s claims must be set forth simply, concisely and directly. Rule 8(d)(1). Forms are

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available to help pro se plaintiffs organize their complaint in the proper way. They are available

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at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at

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www.uscourts.gov/forms/pro-se-forms.

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327;

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Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at

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Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler,

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627 F.3d 338, 340 (9th Cir. 2010). However, the court need not accept as true, legal conclusions

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cast in the form of factual allegations, or allegations that contradict matters properly subject to

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judicial notice. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981);

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Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187

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(2001).

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may

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only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support

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of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th

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Cir. 2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
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A. The Complaint

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Plaintiff’s complaint does not make any clear allegations against any defendants. Under

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the “Statement of Claim” section in the complaint form, she writes “(1) Identity Theft (2)

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“manufacturing” fraudulent properties (3) Money Laundering (4) Financial crimes funding

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terrorism, harming the American people in a grave manner.” ECF No. 1 at 5. Under the “Relief”

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section, plaintiff states that she is seeking criminal prosecution against all parties involved, along

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with unspecified damages. Id. at 6.

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B. Analysis

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Plaintiff has failed to state a legal claim, and therefore her complaint must be dismissed.

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In order to survive IFP screening, the complaint must allege facts showing that defendant engaged

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in some conduct that the law prohibits (or failed to do something the law requires), and that in

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doing so, defendant harmed plaintiff. Plaintiff has not met this threshold. Additionally, to the

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extent plaintiff seeks criminal prosecution against defendants, plaintiff is unable to do so. There

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is no right of private prosecution in federal court; a private individual cannot criminally

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prosecute, or cause the government to criminally prosecute, another private individual. Leeke v.

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Timmerman, 454 U.S. 83, 86–87 (1981), citing Linda R.S. v. Richard D., 410 U.S. 614, 618-19

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(1973).

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Plaintiff has not alleged the violation of any particular law, or made any particular

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allegation against any defendant. It is not clear from the few factual allegations of the complaint

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whether plaintiff could possibly state a claim that can be heard in this court, and that would entitle

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her to relief. Plaintiff will therefore be given an opportunity to amend her complaint.

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II. AMENDING THE COMPLAINT
If plaintiff chooses to amend his complaint, the amended complaint must allege facts

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establishing the existence of federal jurisdiction. In addition, it must contain a short and plain

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statement of plaintiff’s claims. The allegations of the complaint must be set forth in sequentially

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numbered paragraphs, with each paragraph number being one greater than the one before, each

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paragraph having its own number, and no paragraph number being repeated anywhere in the

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complaint. Each paragraph should be limited “to a single set of circumstances” where
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possible. Rule 10(b). As noted above, forms are available to help plaintiffs organize their

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complaint in the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor

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(Rm. 4-200), Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms.

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Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid

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narrative and storytelling. That is, the complaint should not include every detail of what

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happened, nor recount the details of conversations (unless necessary to establish the claim), nor

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give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should

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contain only those facts needed to show how the defendant legally wronged the plaintiff.

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The amended complaint must not force the court and the defendants to guess at what is

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being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)

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(affirming dismissal of a complaint where the district court was “literally guessing as to what

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facts support the legal claims being asserted against certain defendants”). The amended

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complaint must not require the court to spend its time “preparing the ‘short and plain statement’

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which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not

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require the court and defendants to prepare lengthy outlines “to determine who is being sued for

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what.” Id. at 1179.

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Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s

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amended complaint complete. An amended complaint must be complete in itself without

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reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended

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complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline

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Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint

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supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &

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Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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III. PRO SE PLAINTIFF’S SUMMARY
Plaintiff’s complaint is being dismissed because (1) she cannot bring a private lawsuit for
the criminal prosecution of another person, and (2) she fails to tell the court what was done to her,
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by whom, and how she was harmed. Plaintiff has 30 days to file an amended complaint that

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meets the requirements described above. If plaintiff does not file an amended complaint within

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this timeframe, her case may be dismissed.

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IV. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:

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

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2. The complaint (ECF No. 1), is DISMISSED because it fails to make allegations that

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demonstrate plaintiff can make a legal claim that can be heard by this court.

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3. Plaintiff shall have 30 days from the date of this order to file an amended complaint that

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names defendants who are amenable to suit, and which complies with the instructions

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given above. If plaintiff fails to timely comply with this order, the undersigned may

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recommend that this action be dismissed.

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DATED: June 16, 2017

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