(PS) Ackers v. California Employment Development Department et al

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 2/16/2021 GRANTING #2 Motion to Proceed IFP and GRANTING plaintiff 30 days to file an amended complaint that names defendants who are amenable to suit. (Coll, A)

Case 2:21-cv-00244-JAM-AC Document 3 Filed 02/16/21 Page 1 of 6
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY ACKERS,

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No. 2:21cv-00244 JAM AC PS

Plaintiff,
v.

ORDER

CALIFORNIA EMPLOYMENT
DEVELOPMENT DEPARTMENT, and
GAVIN NEWSOM,
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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Case 2:21-cv-00244-JAM-AC Document 3 Filed 02/16/21 Page 2 of 6
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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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Case 2:21-cv-00244-JAM-AC Document 3 Filed 02/16/21 Page 3 of 6
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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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II. THE COMPLAINT
Plaintiff brings a putative class action for violations of the Electronic Funds Transfer Act

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(15 U.S.C. § 1693) (“EFTA”), and many state law claims. ECF No. 1 at 1-2. Plaintiff alleges

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that there is a fraudulent scam being run out of state penitentiaries in which more than 35,000

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inmates were paid out by defendant California Employment Development Department (“EDD”).

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Id. at 3. Plaintiff asserts that over “[a]side from those facts, several million other Californians

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have been cheated out of EDD Benefits by an elusive & Corrosive State Govt.” Id. Plaintiff

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states that he and members of the putative class were “harmed by the same unlawful, deceptive,

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unfair, systemic, and pervasive pattern of misconduct engaged in by Defendant.” ECF No. 1 at 9.

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III. ANALYSIS

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The complaint does not contain facts supporting any cognizable legal claim against any

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defendant; the undersigned accordingly rejects the complaint on screening but will give plaintiff

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the opportunity to amend.

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First, a pro se plaintiff cannot act as an attorney for others and cannot bring a class action.

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C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). The complaint is

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styled as a class action, and all the allegations are brought on behalf of a purported class. If

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plaintiff chooses to amend his complaint, he must bring it on behalf of himself alone. If plaintiff

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reasserts any putative class claims, the undersigned will recommend their dismissal.

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Second, it is not clear that plaintiff has standing to bring this case. “[F]ederal courts are

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required sua sponte to examine jurisdictional issues such as standing [and ripeness].” B.C. v.

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Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). The Article III case or

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controversy requirement limits federal courts’ subject matter jurisdiction by requiring that

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plaintiffs have standing. Valley Forge Christian Coll. v. Ams. United for Separation of Church
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and State, Inc., 454 U.S. 464, 471 (1982). To have Article III standing, a plaintiff must plead and

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prove that he has suffered sufficient injury to satisfy the “case or controversy” requirement of

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Article III of the United States Constitution. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,

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1146 (2013) (“‘One element of the case-or-controversy requirement’ is that plaintiffs ‘must

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establish that they have standing to sue.’” (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997))).

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To satisfy Article III standing, a plaintiff must allege: (1) injury-in-fact that is concrete

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and particularized, as well as actual or imminent; (2) that the injury is fairly traceable to the

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challenged action of the defendant; and (3) that the injury is redressable by a favorable ruling.

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Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (citation omitted); Lujan v.

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Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “The party invoking federal jurisdiction

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bears the burden of establishing these elements . . . with the manner and degree of evidence

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required at the successive stages of the litigation.” Lujan, 504 U.S. at 561 (citations omitted).

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Plaintiff’s complaint does not specify what injury, if any, he personally suffered with respect to

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the allegations in the complaint, and therefore he has not properly alleged standing. If plaintiff

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chooses to amend his complaint, he must explain how he was personally injured by the conduct of

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defendants.

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Finally, plaintiff appears to name the incorrect defendants for the only federal cause of

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action in this case. Plaintiff states that he and class members notified EDD of an “unauthorized

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transaction” triggering EDD’s response obligations, though he does not explain what the

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unauthorized transaction was. Id. at 13-15. However, when EDD issues a debit card for an

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individual to receive benefits, the card is issued and operated by Bank of America, not directly by

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EDD.1 Thus, it appears that EDD and Governor Newsom are not the proper defendants for an

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EFTA claim. If plaintiff chooses to amend his complaint, he must ensure he is suing the proper

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defendant(s).

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See EDD Debit Card Benefits Payments, State of California Employment Development Dept.,
https://edd.ca.gov/About_EDD/FAQs_The_EDD_Debit_Card.htm#:~:text=The%20EDD%20Deb
it%20CardSM%20is%20mailed%20to%20you%20when,are%20determined%20eligible%20for%
20payment (last visited February 10, 2021).
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IV. AMENDING THE COMPLAINT

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If plaintiff chooses to amend the complaint, the amended complaint must be brought on

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behalf of himself alone and must allege facts establishing the existence of standing and federal

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jurisdiction. The amended complaint must contain a short and plain statement of plaintiff’s

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claims. The allegations of the amended complaint must be set forth in sequentially numbered

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

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

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Each paragraph should be limited “to a single set of circumstances” where possible. Rule 10(b).

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As noted above, forms are available to help plaintiffs organize their complaint in the proper way.

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

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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 defendants 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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V. PRO SE PLAINTIFF’S SUMMARY
It is not clear that this case can proceed in federal court. The court cannot tell from your

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complaint what legal harm was done to you, if any. Because the complaint as written (1) is

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brought on behalf of others, (2) does not tell the court how you personally were harmed, and (3)

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appears to name the incorrect defendant for the EFTA claim, it will not be served on defendants.

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Your lawsuit cannot proceed unless you fix these problems with your complaint.

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You are being given 30 days to submit an amended complaint that fixes the problems

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listed above. If you do not submit an amended complaint by the deadline, the undersigned will

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recommend that the case be dismissed.

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VI. CONCLUSION
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. 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: February 16, 2021

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