Mehmood v. Citibank, N.A.

Filing 6

ORDER signed by Magistrate Judge Allison Claire on 4/11/2018 ORDERING 3 Plaintiff's Motion for expedite screening and issuance of summons is DENIED as MOOT; GRANTING 2 Plaintiff's Motion to Proceed IFP; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action; The complaint 1 is DISMISSED with leave to amend; and Plaintiff may file an amended complaint within 30 days of the date of this order. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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YASIR MEHMOOD,

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No. 2:17-cv-02689 MCE AC PS

Plaintiff,
v.

ORDER

CITIBANK, N.A.,
Defendant.

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Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28

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U.S.C. § 1915 to proceed in forma pauperis. This proceeding was accordingly referred to the

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undersigned for pretrial proceedings by E.D. Cal. R. (“Local Rule”) 302(c)(21).

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Plaintiff has submitted the affidavit required by § 1915(a), showing that plaintiff is unable to

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prepay fees and costs or give security for them. ECF No. 2. Accordingly, the request to proceed in

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forma pauperis will be granted. 28 U.S.C. §§ 1915(a). However, because plaintiff is an inmate, the

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law requires that he pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §1914(a),

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1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the

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provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency

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to collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the

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Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by the

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appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account exceeds

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$10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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

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

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which relief may be granted, or seeks monetary relief from a defendant who is immune from such

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relief. 28 U.S.C. § 1915(e)(2). Plaintiff must assist the court in determining whether the

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complaint is frivolous or not, by drafting the complaint so that it complies with the Federal Rules

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of Civil Procedure (“Fed. R. Civ. P.”). Under the Federal Rules of Civil Procedure, the complaint

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must contain (1) a “short and plain statement” of the basis for federal jurisdiction (that is, the

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reason the case is filed in this court, rather than in a state court), (2) a short and plaint statement

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showing that plaintiff is entitled to relief (that is, who harmed the plaintiff, and in what way), and

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(3) a demand for the relief sought. Fed. R. Civ. P. (“Rule”) 8(a). Plaintiff’s claims must be set

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forth simply, concisely and directly. 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. 391, 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), cert.

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denied, 546 U.S. 1037 (2011).

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The court applies the same rules of construction in determining the complaint states a

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

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

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

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stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

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However, the court need not accept as true conclusory allegations, unreasonable inferences, or

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unwarranted deductions of fact. Western Mining Counsel v. Watt, 643 F2d 618, 624 (9th Cir.
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1981). A formulaic recitation of the elements of a cause of action does not suffice to state a

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claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009).

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To state a claim on which relief may be granted, the plaintiff must allege enough facts “to

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state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

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

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

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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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II. THE COMPLAINT
Plaintiff names Citibank, N.A. as the sole defendant in this lawsuit. ECF No. 1 at 2. The

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complaint raises a cause of action under “the Federal Deposit Insurance Act.” Id. at 9. This

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statute is asserted as the basis for federal question jurisdiction. Id.

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Plaintiff alleges that “on or about [the] 3rd week of February 2013,” plaintiff “deposited

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$11,620” in his checking account at Citibank’s Sacramento branch on Marconi Ave. ECF No. 1

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at 5. He alleges a “deposit slip was not given due to some technical error.” Id. Plaintiff further

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states that although the bank teller showed plaintiff “the available balance on [the] computer” in

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the amount of $11,620 and the deposit was confirmed by the bank manager, he alleges that for the

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past “57 months” he has been unable to “get [his] money back.” Id. at 10. Plaintiff states he has

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attempted to locate the money with Citibank’s “helpline” but that they “can’t locate the deposited

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amount” and have “dis-owned the account (and) states no such checking account exists.” Id.

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Plaintiff states he has not made a transaction since the initial deposit. Id. Plaintiff asserts his

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deposit is “federally insured under the Federal Deposit Insurance Act” and “want[s] it back.” Id.

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at 11. For relief, plaintiff seeks monetary damages. Id. at 13.

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The Federal Deposit Insurance Act (“FDIA”) contains many provisions that regulate
financial institutions. See 12 U.S.C.A § 1811 et seq. Plaintiff does not specify what section of
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the Act is the basis for this lawsuit, or how violation of the Act creates federal court jurisdiction

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over this dispute or provides grounds for plaintiff to recover damages. Although courts construe

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pro se complaints liberally, the court cannot identify and assert causes of action on plaintiff’s

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behalf. Moreover, in this case no cognizable federal claims are apparent. Plaintiff’s reliance on

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the FDIA appears to be misplaced, as “the FDIA does not provide a private right of action for

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individuals who are allegedly harmed by an institution’s non-compliance with that Act.” Tidwell

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v. JPMorgan Chase Bank, N.A., No. C-13-2621 EMC, 2013 WL 5539414, at *8 (N.D. Cal. Oct.

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8, 2013). Moreover, the fact that a financial institution is federally insured does not necessarily

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mean that any bad act it commits will support a federal lawsuit. Plaintiff’s allegations suggest

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that Citibank stole his money. Without more, this does not state a cognizable claim.
Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). The present complaint does not meet this standard.

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III. AMENDING THE COMPLAINT
Plaintiff will be provided an opportunity to amend his complaint. The court will therefore
provide guidance for amendment.
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 and how the law was

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violated. 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”).

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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, 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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IV. PLAIN LANGUAGE SUMMARY FOR PRO SE PLAINTIFF
Your application to proceed in forma pauperis will be granted, but your complaint is being

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dismissed and you are being given an opportunity to submit an amended complaint within 30

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days. The amended complaint should be “simple, concise, and direct.” You should provide

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information that clearly states (1) the basis for federal jurisdiction, (2) the alleged harm you

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suffered and how the defendant harmed you, and (3) the relief you are seeking. An amended

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complaint should briefly provide the necessary information, following the directions above.

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V. CONCLUSION

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

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1. Plaintiff’s Motion for Expedite Screening and Issuance of Summons (ECF No. 3) is

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DENIED as moot;

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2. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED;

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3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §1915(b)(1).

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All fees shall be collected and paid in accordance with this court’s order filed concurrently

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herewith.

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

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5. Plaintiff may file an amended complaint within 30 days of the date of this order. If

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plaintiff files an amended complaint, he must comply with the instructions given above. If
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plaintiff fails to timely comply with this order, the undersigned may recommend that this action

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be dismissed for failure to prosecute.

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DATED: April 11, 2018

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