Abed v. Emino et al

Filing 4

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/27/2018 GRANTING 3 Motion to Proceed IFP. Plaintiff's complaint is DISMISSED, but with leave to amend. Within 28 days of this order, plaintiff shall file either (a) a first amended comp laint in accordance with this order, or (b) a notice of voluntary dismissal of the action without prejudice. Failure to file either a first amended complaint or a notice of voluntary dismissal by the required deadline may result in the imposition of sanctions, including potential dismissal of the action with prejudice. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALI ABED,

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No. 2:18-cv-01789-TLN-CKD PS
Plaintiff,

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v.

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ORDER

KRISTEN HEATHER EMINO, et al.,

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Defendants.

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Plaintiff Ali Abed, who is proceeding without counsel in this action, has requested leave

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to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 3.) Plaintiff’s application

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in support of his request to proceed in forma pauperis makes the showing required by 28 U.S.C. §

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1915. Accordingly, the court grants plaintiff’s request to proceed in forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any

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time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.

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This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. §
636(b)(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); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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

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

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear

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that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma

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pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll

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v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th

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Cir. 1984).

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Here, plaintiff’s complaint alleges that his “personal property was taken from [him]

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without serving [him] with any court order” and that as a result defendants have violated his

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rights under the Fifth and Fourteenth Amendments to the United States Constitution. (ECF No. 1

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at 5.) However, the complaint does not include any more factual details. These allegations are

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nothing more than naked assertions without sufficient factual content to state a facially plausible
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claim. Indeed, there are not enough factual allegations to put defendants on notice as to

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plaintiff’s claim. For these reasons, the complaint is subject to dismissal.
Nevertheless, in light of plaintiff’s pro se status, and because it is at least conceivable that

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plaintiff could allege additional facts to potentially state a claim, the court finds it appropriate to

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grant plaintiff an opportunity to amend the complaint.
If plaintiff elects to file an amended complaint, it shall be captioned “First Amended

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Complaint,” shall be typed or written in legible handwriting, shall address the deficiencies

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outlined in this order, and shall be filed within 28 days of this order.

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Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order

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to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint, and once the first amended complaint is

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filed, the original complaint no longer serves any function in the case.

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Finally, nothing in this order requires plaintiff to file a first amended complaint. If

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plaintiff determines that he is unable to amend his complaint in compliance with the court’s order

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at this juncture, he may alternatively file a notice of voluntary dismissal of his claims without

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prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this order.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 3) is granted.

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2. Plaintiff’s complaint is dismissed, but with leave to amend.

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3. Within 28 days of this order, plaintiff shall file either (a) a first amended complaint in

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accordance with this order, or (b) a notice of voluntary dismissal of the action without

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prejudice.

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4. Failure to file either a first amended complaint or a notice of voluntary dismissal by

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the required deadline may result in the imposition of sanctions, including potential

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dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: June 27, 2018

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4/18-1789.abed v. emino. order granting IFP dismiss wlta

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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