Ramos v. Hicks et al

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 4/26/18, GRANTING 2 Motion to Proceed IFP. The complaint 1 , is DISMISSED. Plaintiff shall have 30 days from the date of this order to file an amended complaint. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMANDO C. RAMOS,

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No. 2:18-cv-00930 TLN AC (PS)

Plaintiff,
v.

ORDER

VICTORIA J. HICKS and ALIREZA NIA,
Defendants.

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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. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma

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

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

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I. 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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The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules-

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

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

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

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

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

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

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

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

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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

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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).

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

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

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

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

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A. The Complaint

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Plaintiff brings suit against two employees of the United States Patent and Trademark

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Office (“USPTO”). ECF No. 1 at 2. Plaintiff asserts that the defendants “ignored the stipulation

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in plaintiff’s granted Petition To Make Special for advancement of examination of the latter’s

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patent application thereby unnecessarily delayed the processing of said application causing him

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much concern and emotional distress.” Id. at 3. Plaintiff alleges that after two and a half years of

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efforts to correct the allegedly non-compliant amendments of plaintiff’s patent application, an

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“Office Action” was issued on May 23, 2016 that “totally disregarded, nullified, superseded, and

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‘trashed out all the amendments” that plaintiff worked on. Plaintiff claims the USPTO rejected

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his “Claims 1-8, and objected to claims 9-17 of plaintiff’s patent application dragging him back to

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square one.” Id. Plaintiff asserts this aggravated his hypertension and atrial fibrillation, and it

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made him too sick to respond to the Office Action in the allowed time. Id.

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B. Analysis

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Although the complaint’s statement of the claim is short, it does not plainly set forth the

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basis for plaintiff’s entitlement to legal relief as required by Fed. R. Civ. P. 8(a)(2)-(3). Although

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plaintiff appears to challenge the denial of a patent application, he identifies no cause of action.

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The complaint does not specify the roles of the named defendants in the patent denial, or identify

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any acts of either defendant which suggest an identifiable theory of civil liability. In sum, the

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court cannot tell from examining the complaint what legal wrong was done to plaintiff, by whom

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and when.

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Plaintiff is informed that judicial review of the denial of a patent application is limited to

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the Court of Appeals for the Federal Circuit, pursuant to 35 U.S.C. § 141, following appeal to the

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Patent Trial and Appeal Board under § 134(a). In the alternative, a civil action to obtain a patent
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may be filed in the U.S. District Court for the Eastern District of Virginia, following

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administrative appeal, pursuant to § 145. To the extent that plaintiff believes the actions of

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defendants Hicks and Nia caused him to miss deadlines related to the administrative appeal

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process, such allegations fail to state a claim on which relief could be granted. In other words,

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even if the defendants mishandled plaintff’s patent application, the court cannot discern any legal

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basis for a damages lawsuit against them.

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For these reasons the complaint must be dismissed, but plaintiff will be provided an
opportunity to submit an amended complaint that sets forth a basis for relief.
II. AMENDING THE COMPLAINT
If plaintiff chooses to amend the complaint, the amended complaint must contain a short

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

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

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before, each paragraph having its own number, and no paragraph number being repeated

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anywhere in the complaint. Each paragraph should be limited “to a single set of circumstances”

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

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

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

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

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

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

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

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

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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”). The amended

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

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which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not
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require the court and defendants to prepare lengthy outlines “to determine who is being sued for

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what.” Id. at 1179.

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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 Tel. 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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III. PRO SE PLAINTIFF’S SUMMARY

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The court cannot tell from your complaint what legal harm was done to you. The court is

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dismissing the complaint, but allowing you to submit an amended complaint within 30 days of

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this order. If you choose to submit an amended complaint, it must clearly state who did what to

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you, and why you believe you should be able to get legal relief. You needs to tell the court, in

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simple terms, what laws you believe were violated, who violated them, and how the violations

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impacted you. Without this information, the court cannot tell what legal claims you are trying to

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bring against the defendant. If you do not submit an amended complaint by the deadline, the

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undersigned will recommend that the case be dismissed.

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IV. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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

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

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

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

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

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

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recommend that this action be dismissed.

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DATED: April 26, 2018

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