(PC) Roberts v. Department of the Treasury et al

Filing 16

ORDER signed by District Judge Daniel J. Calabretta on 05/19/23 ADOPTING 14 Findings and Recommendations in part and DISMISSING the complaint with leave to amend. Plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint. This matter is REFFERED back to the Magistrate Judge for all further proceedings. (Licea Chavez, V)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID ROBERTS,
Plaintiff,

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No. 2:22-cv-01789-DJC-DMC-P

v.

ORDER

DEPARTMENT OF THE TREASURY, et
al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to Eastern District of California local rules.

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On December 22, 2022, the Magistrate Judge filed findings and

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recommendations herein which were served on the parties and which contained

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notice that any objections to the findings and recommendations were to be filed

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within fourteen days. (ECF No. 14.) No objections were filed.

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The Court presumes that any findings of fact are correct. See Orand v. United

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States, 602 F.2d 207, 208 (9th Cir. 1979). The Magistrate Judge’s conclusions of law

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are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007)

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(“[D]eterminations of law by the magistrate judge are reviewed de novo by both the
district court and [the appellate] court . . . .”).
The Court has reviewed the file, and generally finds the findings and
recommendations to be supported by the record and by the proper analysis.
However, the Court believes that Plaintiff may be able to cure the deficiencies in his
pleadings if given the opportunity to file an amended complaint.
Should Plaintiff choose to amend his complaint, he must address the issues
identified in the Magistrate Judge’s findings and recommendations. (See ECF No.
14.) Specifically, Plaintiff is directed to allege, if he can, (1) a factual basis for his
assertion the deductions of child support payments from various stimulus checks were
unlawful, and (2) that those deductions violate 42 U.S.C. § 1983, keeping in mind that
the elements of a § 1983 claim are: (1) a violation of rights protected by the
Constitution or created by federal statute, (2) proximately caused (3) by conduct of a
“person” (4) acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420
(9th Cir. 1991).
Once Plaintiff files an amended complaint, the original complaint will be
superseded. By signing the amended complaint, Plaintiff certifies he has made a
reasonable inquiry and has evidentiary support for his allegations. An amended
complaint must be complete without reference to any prior pleading. E.D. Cal. R. 220.
In the amended complaint, Plaintiff must clearly identify each defendant and
the action that defendant took that violated Plaintiff’s constitutional rights. If Plaintiff
wishes to add a claim, he must include it in the body of the complaint. The charging
allegations must be set forth in the amended complaint so that defendants will have
fair notice of the claims Plaintiff is presenting. That said, Plaintiff need not provide
every detailed fact in support of his claims. Rather, Plaintiff’s claims should be set forth
in short and plain terms. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)
(“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to
focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.
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Further, any amended complaint must show the federal court has jurisdiction,
the action is brought in the right place, and that Plaintiff is entitled to relief if Plaintiff’s
allegations are true. It must contain a request for a particular form of relief. Plaintiff
must identify as a defendant only persons who personally participated in a substantial
way in depriving Plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d
740, 743 (9th Cir. 1978) (stating that a person subjects another to the deprivation of a
constitutional right if he does an act, participates in another’s act, or omits to perform
an act he is legally required to do that causes the alleged deprivation). “Vague and
conclusory allegations of official participation in civil rights violations are not
sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).
Finally, in the amended complaint, the allegations must be set forth in
numbered paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they
are all against a single defendant. Fed. R. Civ. P. 18(a). However, if Plaintiff has more
than one claim based upon separate transactions or occurrences, the claims must be
set forth in separate paragraphs. Fed. R. Civ. P. 10(b).
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
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The findings and recommendations filed December 22, 2022 (ECF
No. 14), are adopted in part;

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The complaint (ECF No. 1) is dismissed with leave to amend;

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Plaintiff is granted thirty days from the date of service of this order
to file an amended complaint that complies with the requirements
of the Civil Rights Act, the Federal Rules of Civil Procedure, and
the Local Rules of Practice; the amended complaint must bear the
docket number assigned this case and must be labeled “First
Amended Complaint;” failure to file an amended complaint in
accordance with this order may result in a recommendation that
this action be dismissed;
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The Clerk of the Court is directed to send plaintiff a copy of the
prisoner complaint form used in this district; and

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This matter is referred back to the Magistrate Judge for all further
proceedings.

IT IS SO ORDERED.
Dated:

May 19, 2023
Hon. Daniel J. Calabretta
UNITED STATES DISTRICT JUDGE

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