Draper v. Google Corporation et al

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 8/15/17 ORDERING that Plaintiff's Request to proceed in forma pauperis 2 is DENIED without prejudice to its renewal in proper form. The Complaint 1 is DISMISSED with leave to amend; Plaintiff may file his renewed IFP application and amended complaint within 30 days of the date of this order.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN LEE DRAPER,

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No. 2:17-cv-01299 KJM AC PS

Plaintiff,
v.

ORDER

GOOGLE CORPORATION, et al.,
Defendants.

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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 also requested leave to proceed in forma

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pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. ECF No. 2. The request will be denied because

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plaintiff‘s IFP affidavit fails to establish that he cannot afford the filing fee.

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I. INSUFFICIENT INFORMATION IN THE IFP APPLICATION

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According to the application, plaintiff received money from “Disability, or worker’s

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compensation payments” during the past 12 months. ECF No. 2 at 1 ¶ 3. However, plaintiff fails

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to disclose “the amount that you received and what you expect to receive in the future.” See id.

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at 1. Moreover, plaintiff fails to disclose whether he receives other income from “Business,

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profession, or other self-employment,” “Rent payments, interests, or dividends,” “Pension,

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annuity, or life insurance payments,” gifts or inheritances,” or “any other sources.” Id. at 1 ¶3(a)-

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(c), (e)-(f). Because of these omissions, plaintiff’s IFP application fails to establish that he is
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entitled to prosecute this case without paying the required fees.

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II. SCREENING STANDARDS
The federal IFP statute requires federal courts to dismiss a case if the action is legally

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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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

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

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Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain

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statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this court,

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rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled to

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relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief sought.

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Fed. R. Civ. P. (“Rule”) 8(a). Plaintiff’s claims must be set forth simply, concisely and directly.

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Rule 8(d)(1).

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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; Von

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Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010),

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cert.denied, 564 U.S. 1037 (2011).

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The court applies the same rules of construction in determining whether the complaint

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states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court

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must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must

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construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a

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less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520

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(1972). However, the court need not accept as true conclusory allegations, unreasonable

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inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

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624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice
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to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009). To state a claim on which relief may be granted, the plaintiff must

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allege enough facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

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570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 556 U.S. at 678.

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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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III. COMPLAINT

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Plaintiff names Google Corporation, Microsoft Corporation, and Facebook Corporation as

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the sole defendants in this lawsuit. ECF No. 1 at 1. The plaintiff seems to be alleging “theft by

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deception/ copyright infringement, falsifying court documents” as the basis for federal court

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jurisdiction. ECF No. 1 at 2.1

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It is very difficult to understand the meaning of the complaint due to illegible handwriting

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and use of the incorrect court form. As best the court can tell, plaintiff is complaining about the

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publication of a book in which plaintiff had exclusive rights as the owner of the copyright. Id. at

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3-6.

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The complaint does not contain a “short and plain statement” setting forth 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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nor does the complaint establish the basis for plaintiff’s claim (that is, who did what to plaintiff)

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and federal court jurisdiction as required by Fed. R. Civ. P. 8(a)(1)-(2). Moreover, it is difficult

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for the court to decipher what the alleged harm that the plaintiff suffered and which defendant

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Plaintiff filed his complaint utilizing the court form for a defendant’s answer to a complaint.
See ECF No. 1. The court directs the plaintiff to the form used to file a complaint in a civil case,
which may be obtained from the court’s website at:
http://www.caed.uscourts.gov/caednew/assets/File/1%20Complaint%20for%20Civil%20Case.pdf
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inflicted the alleged harm on the plaintiff. Accordingly the complaint must be dismissed for

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failure to state a claim.

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IV. AMENDING THE COMPLAINT
The amended complaint must contain a short and plain statement of plaintiff’s claims.

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That is, it must state what the defendant did that harmed the plaintiff. The amended complaint

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must not force the court and the defendant to guess at what is being alleged against whom. See

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McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal of a complaint where

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the district court was “literally guessing as to what facts support the legal claims being asserted

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against certain defendants”). To the extent possible, plaintiff should provide the information

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identified as missing above.
In setting forth the facts, plaintiff must not go overboard, however. He must avoid

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excessive repetition of the same allegations. He must avoid narrative and storytelling. That is,

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the complaint should not include every detail of what happened, nor recount the details of

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conversations (unless necessary to establish the claim), nor give a running account of plaintiff’s

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hopes and thoughts. Rather, the amended complaint should contain only those facts needed to

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show how the defendant legally wronged the plaintiff.

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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 Telephone 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, an amended complaint, as in an original

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

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V. PLAIN LANGUAGE SUMMARY FOR PRO SE PLAINTIFF
Your application to proceed in forma pauperis and your complaint are being

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dismissed, and you are being given an opportunity to submit an amended IFP application and

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amended complaint within 30 days. The amended complaint should be “simple, concise, and
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direct.” You should provide information that clearly states (1) the basis for federal jurisdiction,

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(2) the alleged harm you suffered and which defendant harmed you, and (3) the relief you are

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seeking. An amended complaint should briefly provide the necessary information, following the

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directions above. The court form for a complaint in a civil case will help you organize the

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required information.

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VI. CONCLUSION

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For the reasons explained above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is DENIED without

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prejudice to its renewal in proper form, as explained above.

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2. The complaint (ECF No. 1) is DISMISSED with leave to amend;

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3. Plaintiff may file his renewed IFP application and amended complaint within 30 days

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of the date of this order. If plaintiff files an amended complaint, he must comply with the

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

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recommend that this action be dismissed for failure to prosecute.

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DATED: August 15, 2017

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