Cakarcan-Sbabo v. U.S. Department of Education et al

Filing 6

ORDER signed by Magistrate Judge Dennis M. Cota on 2/7/19 DISMISSING 1 Complaint with leave to amend and GRANTING plaintiff 30 days after being served with this order to file a First Amended Complaint. (Coll, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GAMZE CAKARCAN-SBABO,

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No. 2:18-CV-0407-MCE-DMC

Plaintiff,
v.

ORDER

U.S. DEPARTMENT OF EDUCATION,
et al.,
Defendants.

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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the
court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this screening

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provision, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious;

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(2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a

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defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B). Moreover,

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pursuant to Federal Rule of Civil Procedure 12(h)(3), this court must dismiss an action if the court

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determines that it lacks subject matter jurisdiction. Because plaintiff has been granted leave to

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proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant

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to Rule 12(h)(3), the court will also consider as a threshold matter whether it has subject-matter
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jurisdiction.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff names the following as defendants: (1) U.S. Department of Education;

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(2) University of Phoenix; (3) The Great Lakes; and (4) California State University, Los

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Angeles.1 As for the basis of this court’s jurisdiction, plaintiff states:

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Some federal agencies involved in this case have violated all my
amendments rights and I have documentions [sic] for proof that could lead
to federal impeachments of these agencies involved.

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Doc. 1, p. 4.

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Plaintiff next offers the following statement of his claim:

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I took three classes at the University of Phoenix. I was mislead [sic] and
asked to apply for financial aid. I paid about $2,500.00 admission fees out
of pocket and took three classes. What happened to my rest of the
financial aid of almost $10,000.00 that was forwarded from The Great
Lakes to the University of Phoenix is not clear. Moreover, the educational
system forced to retake the classes I already had for my BSN degree in
Germany.

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Id. at 5.

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Plaintiff seeks damages for “lost of educational time and lost of education and severe emotional

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distress that had impacted my physical strength.” Id. at 6.

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II. DISCUSSION

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In determining whether a cognizable claim has been stated, the court must accept

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all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-

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94 (2007). The court must also construe the alleged facts in the light most favorable to the

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plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex

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Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994)

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(per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins

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v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported

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The Clerk of the Court will be directed to update the docket to reflect California
State University, Los Angeles, is a named defendant to this action.
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by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-

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50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

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of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly,

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order

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to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic

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recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to

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raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain

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“enough facts to state a claim to relief that is plausible on its face.” Id. 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, 129 S. Ct. at

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1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

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at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,

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it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id.

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(quoting Twombly, 550 U.S. at 557).

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The court generally may not consider materials outside the complaint and

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pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d

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449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are

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alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14

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F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint

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necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles,

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250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take

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judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Finally, leave to amend

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must be granted “[u]nless it is absolutely clear that no amendment can cure the defects.” Lucas v.

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Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d
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1122, 1126 (9th Cir. 2000) (en banc).
In this case, plaintiff’s minimal factual allegations – that he took classes at the

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University of Phoenix, that he applied for financial aid, that he was required to re-take classes he

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alleges he completed as part of a degree program in Germany – fail to allow the court to draw the

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reasonable inference the named defendants violated plaintiff’s constitutional or statutory rights.

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Plaintiff has alleged no facts specific to any of the four named defendants. Nor has plaintiff

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identified the specific constitutional provisions or provisions defendants are alleged to have

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violated. Plaintiff has not identified any statutory right at issue. The court cannot even say

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plaintiff’s factual allegations are consistent with liability given the paucity of actual facts alleged.

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III. CONCLUSION

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Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez, 203 F.3d at 1126. Plaintiff is informed that, as a general rule, an amended

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complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). Thus, following dismissal with leave to amend, all claims alleged in the original

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complaint which are not alleged in the amended complaint are waived. See King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer

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to the prior pleading in order to make plaintiff's amended complaint complete. See Local Rule

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220. An amended complaint must be complete in itself without reference to any prior pleading.

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See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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facts alleged have resulted in a deprivation of plaintiff’s constitutional or statutory rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file a first amended complaint within 30 days of the date of

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service of this order.

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Dated: February 7, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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