Strange v. United States Army

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 1/19/2018 DENYING 2 Motion to Proceed IFP without prejudice to its renewal in proper form; DISMISSING Complaint with leave to amend, Plaintiff must file his renewed IFP Application and 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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LEVI GARCIA STRANGE,

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No. 2:17-cv-2699 JAM AC PS

Plaintiff,
v.

ORDER

THE UNITED STATES ARMY,

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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. R. (“Local Rule”) 302(c)(21). Plaintiff has also requested leave to

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proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 2. The request will be denied

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because (1) plaintiff’s IFP affidavit fails to establish that he cannot afford the filing fee, and

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(2) the complaint, in its current form, is frivolous. Plaintiff will be given the opportunity to

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provide additional information to support his IFP application, and to submit an amended

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complaint.

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I. INSUFFICIENT INFORMATION IN THE IFP APPLICATION
According to plaintiff’s in forma pauperis application, plaintiff received money from

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“Disability, or worker’s compensation payments” during the past 12 months in the amount of

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$935.00 from “SSA” and $264.00 from “VA.” ECF No. 2 at 1 ¶ 3. However, the application

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does not indicate whether plaintiff is employed and if so, how much his “gross pay or wages are”
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and his “take-home pay or wages are.” Id. at 1 ¶ 2. Moreover, plaintiff fails to disclose whether

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he receives other income from “Business, profession, or other self-employment,” “Rent

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payments, interests, or dividends,” “Pension, annuity, or life insurance payments,” gifts or

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inheritances,” or “any other sources.” Id. at 1 ¶3(a)-(c), (e)-(f). Because of these omissions,

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plaintiff’s application fails to establish that he is entitled to prosecute this case without paying the

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required fees. The application will therefore be denied, and plaintiff will be given the opportunity

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to submit a more detailed application that provides all requested information.

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II. SCREENING
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. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. Fed. R.

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Civ. P. 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), cert.

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

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The court applies the same rules of construction in determining whether the complaint
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. THE COMPLAINT
The one-page complaint consists of a recitation of general instructions for preparing a

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civil complaint. ECF No. 1 at 1. It does not specify a basis for jurisdiction, present any

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allegations of fact, or identify the relief sought. Id. Plaintiff has attached a series of exhibits that

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indicate he was discharged from the United States Army in 1977 and that he sought in 2016 to

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correct his military record. Id. at 2-12. The civil cover sheet describes the cause of action as “no

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letter of intent from either parent,” and indicates that this is a class action in which plaintiff

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demands 40 million dollars. ECF No. 1-1.

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IV. ANALYSIS
The complaint does not contain a “short and plain” statement setting forth the basis for

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

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or plaintiff’s claims (that is, who did what to plaintiff and how he was harmed), even though

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those things are required by Fed. R. Civ. P. 8(a)(1), (a)(2). The court cannot tell what happened
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to plaintiff, how he was harmed, why he is suing the defendant, or what law gives him a right to

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sue. Accordingly, the complaint must be dismissed as frivolous.

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IV. 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. The amended complaint

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must not force the court and the defendants 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”).

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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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V. PLAIN LANGUAGE SUMMARY FOR PRO SE PLAINTIFF
Your application to proceed in forma pauperis and your complaint are being dismissed,
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and you are being given an opportunity to submit an amended IFP application and amended

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complaint within 30 days. The amended complaint should be “simple, concise, and direct.” You

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should provide information in the body of your complaint that clearly states (1) the basis for

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federal jurisdiction, (2) the alleged harm you suffered and which defendant harmed you, (3) the

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relief you are seeking. An amended complaint should briefly provide the necessary information,

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following the directions above.

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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 must 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 do his best to follow the

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guidance provided in this order. If plaintiff fails to timely comply with this order, the

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undersigned may recommend that this action be dismissed for failure to prosecute.

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DATED: January 19, 2018

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