Allard v. Secretary of Health and Human Services

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 04/04/18 GRANTING 2 Motion to Proceed IFP. The complaint 1 is dismissed because it does not contain the short and plain statement of the claim required by Rule 8(a). Plaintiff shall have 30 days from the date of this order to file an amended complaint that names defendants who are amenable to suit and complies with the instructions given above. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SUSAN ALLARD,

12
13
14
15
16

No. 2:18-cv-00742 JAM AC (PS)

Plaintiff,
v.

ORDER

SECRETARY OF HEALTH AND
HUMAN SERVICES,
Defendant.

17
18

Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

19

undersigned by E.D. Cal. Local Rule 302(c)(21). Plaintiff has filed a request for leave to proceed

20

in forma pauperis (“IFP”), and has submitted the affidavit required by that statute. See 28 U.S.C.

21

§ 1915(a)(1). The motion to proceed IFP will therefore be granted.

22
23

I. SCREENING
The federal IFP statute requires federal courts to dismiss a case if the action is legally

24

“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

25

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

26

Plaintiff must assist the court in determining whether or not the complaint is frivolous, by drafting

27

the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”).

28

The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules1

1
2

policies/current-rules-practice-procedure/federal-rules-civil-procedure.
Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and

3

plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this

4

court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled

5

to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief

6

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

7

Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in

8

the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200),

9

Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms.

10

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

11

Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the

12

court will (1) accept as true all of the factual allegations contained in the complaint, unless they

13

are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

14

plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von

15

Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert.

16

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

17

The court applies the same rules of construction in determining whether the complaint

18

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

19

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

20

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

21

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

22

(1972). However, the court need not accept as true conclusory allegations, unreasonable

23

inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

24

624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice

25

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

26

556 U.S. 662, 678 (2009).

27
28

To state a claim on which relief may be granted, the plaintiff must allege enough facts “to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
2

1

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

2

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

3

678.  A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity

4

to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v.

5

Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in

6

Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc).

7

A. The Complaint

8

Plaintiff brings suit against the Secretary of Health and Human Services for “violation of

9

AB 88, civil rights, Medicare standards of care, 5150 rules, etc.” ECF No. 1 at 4. Under

10

“statement of claim” plaintiff writes “defendant reimbursed Medicare claims proved fraudulent

11

but refused to reimburse clinically necessary treatment.” Id. at 5. Plaintiff seeks $500,000,000 in

12

“whistleblower awards.” Id. at 6. The remainder of plaintiff’s complaint is incoherent.

13

Plaintiff’s complaint contains 246 pages of documents – including written narrative, photocopied

14

papers, e-mail correspondence, and handwritten notes – without any indication of how these

15

documents relate to plaintiff’s claims.

16

B. Analysis

17

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

18

federal jurisdiction, plaintiff’s entitlement to relief, or the relief that is sought, even though those

19

things are required by Fed. R. Civ. P. 8(a)(1)-(3). The exact nature of what happened to plaintiff

20

is obscured by the complaint, which describes apparently disconnected events and circumstances

21

that do not bear any clear connection to the only defendant in this case. The court cannot tell

22

from examining the complaint what legal wrong was done to plaintiff, by whom and when, or

23

how any alleged harm is connected to the relief plaintiff seeks.

24
25

II. AMENDING THE COMPLAINT
If plaintiff chooses to amend the complaint, the amended complaint must allege facts

26

establishing the existence of federal jurisdiction. In addition, it must contain a short and plain

27

statement of plaintiff’s claims. The allegations of the complaint must be set forth in sequentially

28

numbered paragraphs, with each paragraph number being one greater than the one before, each
3

1

paragraph having its own number, and no paragraph number being repeated anywhere in the

2

complaint. Each paragraph should be limited “to a single set of circumstances” where

3

possible. Rule 10(b). As noted above, forms are available to help plaintiffs organize their

4

complaint in the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor

5

(Rm. 4-200), Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms.

6

Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid

7

narrative and storytelling. That is, the complaint should not include every detail of what

8

happened, nor recount the details of conversations (unless necessary to establish the claim), nor

9

give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should

10

contain only those facts needed to show how the defendant legally wronged the plaintiff.

11

The amended complaint must not force the court and the defendants to guess at what is

12

being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)

13

(affirming dismissal of a complaint where the district court was “literally guessing as to what

14

facts support the legal claims being asserted against certain defendants”). The amended

15

complaint must not require the court to spend its time “preparing the ‘short and plain statement’

16

which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not

17

require the court and defendants to prepare lengthy outlines “to determine who is being sued for

18

what.” Id. at 1179.

19

Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s

20

amended complaint complete. An amended complaint must be complete in itself without

21

reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended

22

complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline

23

Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint

24

supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &

25

Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an

26

original complaint, each claim and the involvement of each defendant must be sufficiently

27

alleged.

28

////
4

1
2

III. PRO SE PLAINTIFF’S SUMMARY
The court cannot tell from plaintiff’s complaint what legal harm was done to her. The

3

court is dismissing plaintiff’s complaint, but allowing her to submit an amended complaint within

4

30 days of this order. If plaintiff chooses to submit an amended complaint, it must clearly state

5

who did what to her, and why she believes she should be able to get legal relief. Plaintiff needs to

6

tell the court, in simple terms, what laws she believes were violated, who she believes violated

7

them, and how the violations impacted her. Without this information, the court cannot tell what

8

legal claims plaintiff is trying to bring against the defendant. If plaintiff does not submit an

9

amended complaint by the deadline, the undersigned will recommend that the case be dismissed.

10
11

IV. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:

12

1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is GRANTED;

13

2. The complaint (ECF No. 1), is DISMISSED because it does not contain the short and

14

plain statement of the claim required by Rule 8(a); and

15

3. Plaintiff shall have 30 days from the date of this order to file an amended complaint that

16

names defendants who are amenable to suit, and which complies with the instructions

17

given above. If plaintiff fails to timely comply with this order, the undersigned may

18

recommend that this action be dismissed.

19

DATED: April 4, 2018

20
21
22
23
24
25
26
27
28
5