Brooks v. Bank of America

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/7/18 GRANTING 2 Motion to Proceed IFP; DISMISSING 1 Complaint with leave to amend; and GRANTING plaintiff 30 days after being served with this order to file an amended complaint. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY BRYAN BROOKS,

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Plaintiff,

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No. 2:17-cv-1430-TLN-EFB PS

v.

ORDER

BANK OF AMERICA,

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Defendant.

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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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Determining that plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed

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below, plaintiff’s complaint fails to state a claim and must be dismissed.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,
520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it
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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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Under this standard, the court must accept as true the allegations of the complaint in

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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading

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requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a

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complaint to include “a short and plain statement of the claim showing that the pleader is entitled

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to relief, in order to give the defendant fair notice of what the claim is and the grounds upon

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which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Plaintiff’s complaint alleges that defendant Bank of America closed his business checking

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and savings accounts without prior notification. ECF No. 1 at 5. When plaintiff contacted

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defendant’s risk department, he learned that a fraudulent check in the amount of $19,873 had

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been deposited into his business checking account at an Atlanta, Georgia branch. Id. Plaintiff

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claims that a representative from the risk department wrongly accused him of personally

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depositing the fraudulent check. Id. However, plaintiff claims that he could not have deposited

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the fraudulent check because he was at work at the time it was deposited. Id. Plaintiff concludes

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that the defendant violated his Fourteenth Amendment rights by providing “no fair procedural

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process before [it] closed plaintiff’s business checking/savings” accounts and failing to return the

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funds that were in those accounts. Id. at 4.

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These allegations suggest an attempt to assert a procedural due process claim under 42

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U.S.C. § 1983. But such a claim necessarily fails. To state a claim for violation of a

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constitutional right under 42 U.S.C. § 1983, a plaintiff must allege: (1) that a right secured by the

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Constitution or laws of the United States was violated, and (2) that the alleged violation was

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988). “‘Section 1983 excludes from its reach merely private conduct, no matter how

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discriminatory or wrong.’” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th

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Cir. 1999) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)); see also Apao v.

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Bank of New York, 324 F.3d 1091, 1093 (9th Cir. 2003) (Fourteenth Amendment “shields citizens

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from unlawful governmental action, but does not affect conduct by private entities.”). Here,

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plaintiff fails to allege that defendant is a state actor or was otherwise acting under color of state

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law. Accordingly, he fails to state a procedural due process claim.

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It is unclear how plaintiff might otherwise state a claim against this defendant that would

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be cognizable in federal court, either as a claim arising under federal question jurisdiction or as a

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state law claim properly before this court based on diversity jurisdiction. Plaintiff is granted

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leave to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc) (district courts must afford pro se litigants an opportunity to amend to correct any

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deficiency in their complaints). Such a complaint must allege a cognizable legal theory against a

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proper defendant and sufficient facts in support of that cognizable legal theory. The amended

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complaint shall clearly set forth the allegations against each defendant and shall specify a basis

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for this court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims

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in “numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as

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required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper

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that bears line numbers in the left margin, as required by Eastern District of California Local

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Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each

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claim alleged and against which defendant or defendants the claim is alleged, as required by Rule

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10(b), and must plead clear facts that support each claim under each header.

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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

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make an amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files an amended complaint, the original no longer serves any function in the case.

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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

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may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.

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Accordingly, IT IS ORDERED that:

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

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2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint. The amended complaint must bear the docket number assigned to this case and must

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be labeled “First Amended Complaint.” Failure to timely file an amended complaint in

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accordance with this order will result in a recommendation this action be dismissed.

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DATED: November 7, 2018.

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