Wolpert v. Disney ABC Broadcasting Corporation et al
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/10/2018 GRANTING Plaintiff's 2 Motion to Proceed IFP; Plaintiff's 11 Motion to expedite is DENIED; Plaintiff's complaint is DISMISSED with lea ve to amend, as provided herein; Plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint; RECOMMENDING that Plaintiff's motions for injunctive relief 3 , 4 , 5 & 6 be denied; Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these F & R's.(Reader, L)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DAVID ALEXANDER WOLPERT,
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Plaintiff,
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No. 2:18-cv-299-KJM-EFB PS
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
DISNEY ABC BROADCAST
CORPORATION, NBC CORPORATION,
Defendants.
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Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. 1915
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(ECF No. 2), motions for injunctive relief (ECF Nos. 3, 4, 5, 6), and a motion to expedite this
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case (ECF No. 11).1 For the reasons explained below, plaintiff’s application to proceed in forma
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pauperis is granted but the complaint must be dismissed with leave to amend. Accordingly, his
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motion to expedite the case is denied as moot. Further, it is recommended that his motions for
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injunctive relief be denied.
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I.
Request to Proceed In Forma Pauperis and Screening Requirement
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Plaintiff’s application to proceed in forma pauperis makes the financial showing required
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by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. Accordingly, the request to proceed in forma
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pauperis is granted.
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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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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,
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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it
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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, 562-563, 570 (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. at 555 (citations omitted). Dismissal is appropriate based either on the lack of
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cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal
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theories. 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, 355 U.S. at 47).
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Plaintiff’s complaint is difficult to decipher. Plaintiff purports to allege a claim(s) against
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“Disney ABC Broadcasting Corporation” and NBC Corporation. ECF No. 1 at 2-3. The
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complaint’s “Statement of Claim” consists of the following: “my information was used in a
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defamatory way that resulted in both personal danger and danger to the United States. I have had
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gross medical problems that are compounded by misinformation.” Id. at 5. In his request for
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relief, plaintiff writes, “the information used in the show was slightly misrepresented which
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resulted in the loss of income, loss of establishing credentials, loss of medical treatment, and
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prolonged personal Danger.” Id. at 6.
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These allegations are insufficient to state a claim upon which relief may be granted.
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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice
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and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency,
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733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity
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overt acts which defendants engaged in that support plaintiff’s claim. Id. The allegations must be
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short and plain, simple and direct and describe the relief plaintiff seeks. Fed. R. Civ. P. 8(a);
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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307
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F.3d 1119, 1125 (9th Cir. 2002).
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Plaintiff’s complaint does not allege a specific cause of action, nor does it contain any
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facts that would support a cognizable claim against either defendant. Accordingly, the complaint
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must be dismissed.2 See Chubb Custom Ins. Co. v. Space Systems/Loral, Inc., 710 F.3d 946, 956
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(9th Cir. 2013) (“Dismissal is proper when the complaint does not make out a cognizable legal
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theory or does not allege sufficient facts to support a cognizable legal theory.”) Plaintiff,
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however, is granted leave to file an amended complaint, if he can allege a cognizable legal theory
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and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122,
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1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to
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amend to correct any deficiency in their complaints). Should plaintiff choose to file an amended
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complaint, the amended complaint shall clearly set forth the allegations against defendant and
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shall specify a basis for this court’s subject matter jurisdiction. Any amended complaint shall
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plead plaintiff’s claims in “numbered paragraphs, each limited as far as practicable to a single set
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of circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in double-
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spaced text on paper that bears line numbers in the left margin, as required by Eastern District of
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In light of this, plaintiff’s motion to expedite (ECF No.11) is denied as moot.
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California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings
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to delineate each claim alleged and against which defendant or defendants the claim is alleged, as
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required by Rule 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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II.
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Motions for Injunctive Relief
As discussed above, plaintiff’s complaint fails to state a claim. Necessarily, he has not
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demonstrated a likelihood of success on the merits that could support the grant of preliminary
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injunctive relief. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). At an
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irreducible minimum plaintiff must establish “serious questions going to the merits” of his claims.
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Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2010). He has not done so
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and his motions for injunctive relief must be denied.
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III.
Conclusion
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Accordingly, it is hereby 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 motion to expedite (ECF No. 11) is denied.
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3. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.
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4. 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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Further, it is RECOMMENDED that plaintiff’s motions for injunctive relief (ECF No. 3,
4, 5, 6) be denied.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: September 10, 2018.
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