Dean v. Lane

Filing 3

ORDER signed by Magistrate Judge Deborah Barnes on 10/20/2017 ORDERING that the complaint filed September 26, 2017 (ECF No. 1 ) is DISMISSED WITH LEAVE TO AMEND. Within twenty-eight days from the date of this order, an amended complaint shall be fi led that cures the defects noted in this order and complies with the Federal Rules of Civil Procedure and the Local Rules of Practice; The amended complaint must bear the case number assigned to this action and must be titled "Amended Complaint"; Failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed. (Becknal, R)

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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 DEAN, 12 Plaintiff, 13 14 No. 2:17-cv-1988 KJM DB PS v. ORDER DARLEEN LANE, 15 Defendant. 16 Plaintiff is proceeding in this action pro se. This matter was referred to the undersigned in 17 18 accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the court is 19 plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 (ECF Nos. 1 & 2.) Therein, plaintiff complains of the destruction of property. The court is required to screen complaints brought by parties proceeding in forma 21 22 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 23 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 24 below, plaintiff’s complaint will be dismissed with leave to amend. 25 I. 26 Plaintiff’s Application to Proceed In Forma Pauperis Plaintiff’s in forma pauperis application makes the financial showing required by 28 27 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 28 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 1 1 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 2 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 3 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 4 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 5 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 6 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 7 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 8 District Court to examine any application for leave to proceed in forma pauperis to determine 9 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 10 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 11 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 12 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 13 state a claim on which relief may be granted, or seeks monetary relief against an immune 14 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 15 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 16 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 17 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 18 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 19 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 20 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 21 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 22 true the material allegations in the complaint and construes the allegations in the light most 23 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 24 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 25 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 26 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 27 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 28 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 2 1 The minimum requirements for a civil complaint in federal court are as follows: 2 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. 3 4 5 Fed. R. Civ. P. 8(a). 6 II. 7 Plaintiff’s Complaint Here, it appears from the complaint’s sparse allegations that this court lacks jurisdiction 8 over this matter. Jurisdiction is a threshold inquiry that must precede the adjudication of any case 9 before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 10 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may 11 adjudicate only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 12 U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are 13 presumed to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey 14 v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 15 U.S. 534, 546 (1986)). 16 Lack of subject matter jurisdiction may be raised by the court at any time during the 17 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 18 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has 19 subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the 20 obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v. 21 Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court 22 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380. 23 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer 24 “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be 25 conferred by federal statutes regulating specific subject matter. “[T]he existence of federal 26 jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to 27 those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 28 1108, 1113 (9th Cir. 2000). 3 District courts have diversity jurisdiction only over “all civil actions where the matter in 1 2 controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action 3 is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a 4 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are 5 additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different 6 States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be 7 a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss, 8 797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between 9 the parties-each defendant must be a citizen of a different state from each plaintiff.” In re 10 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). 11 Here, it does not appear that the court has diversity jurisdiction over this action, as the 12 complaint alleges that plaintiff and defendant are both California residents. Moreover, the 13 allegations of the complaint do not appear to implicate a federal question. In this regard, the 14 complaint alleges that the defendant locked plaintiff out of plaintiff’s business and destroyed 15 plaintiff’s art work. (Compl. (ECF No. 1) at 6.) 16 III. 17 Leave to Amend For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 18 has carefully considered whether plaintiff may amend the complaint to state a claim for relief 19 upon which the court would have subject matter jurisdiction. “Valid reasons for denying leave to 20 amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. 21 Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake 22 Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that 23 while leave to amend shall be freely given, the court does not have to allow futile amendments). 24 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 25 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 26 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 27 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972); see also Weilburg v. 28 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 4 1 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 2 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 3 1988)). Here, given the extremely vague and conclusory nature of the complaint’s allegations, the 4 5 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. 6 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an 7 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended 8 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint 9 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 10 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While 11 legal conclusions can provide the complaint’s framework, they must be supported by factual 12 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from 13 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 14 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 15 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 16 in itself without reference to prior pleadings. The amended complaint will supersede the original 17 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 18 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 19 and identified in the body of the complaint, and each claim and the involvement of each 20 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 21 must also include concise but complete factual allegations describing the conduct and events 22 which underlie plaintiff’s claims. 23 IV. Conclusion 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The complaint filed September 26, 2017 (ECF No. 1) is dismissed with leave to 26 27 28 amend.1 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. 5 1 2. Within twenty-eight days from the date of this order, an amended complaint shall be 2 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 3 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number 4 assigned to this action and must be titled “Amended Complaint.” 5 3. Failure to comply with this order in a timely manner may result in a recommendation 6 that this action be dismissed. 7 Dated: October 20, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DLB:6 DB/orders/ se/dean1988.dism.lta.ord 23 24 25 26 27 28 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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