(PS) Murphy v. Witbeck

Filing 4

ORDER signed by Magistrate Judge Sean C. Riordan on 3/6/2025 GRANTING Plaintiff's 2 request to proceed in forma pauperis; and GRANTING plaintiff 30 days leave to file an amended complaint that addresses the defects as set forth. Alternatively, Plaintiff may file a notice of voluntary dismissal of this action. (Deputy Clerk RRB)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHANNON O. MURPHY, Sr.,

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No. 2:25-cv-00506-DAD-SCR

Plaintiff,
v.

ORDER

STACY WITBECK,

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Defendant.

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Plaintiff is proceeding pro se in this action, which was accordingly referred to the

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undersigned pursuant to Local Rule 302(c)(21). Plaintiff has filed a request for leave to proceed

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in forma 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. However, for the reasons

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provided below, the Court finds Plaintiff’s complaint is legally deficient and will grant Plaintiff

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leave to file an amended complaint.
I. SCREENING

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A.

Legal Standard

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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). In

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reviewing the complaint, the Court is guided by the requirements of the Federal Rules of Civil
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Procedure. 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. Erickson, 551 U.S. at 94. However, the

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court need not accept as true legal conclusions, even if cast as factual allegations. See Moss v.

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U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). A formulaic recitation of the elements of

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a cause of action does not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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555-57 (2007); Ashcroft v. Iqbal, 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
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 Akhtar v.

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Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012).

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B.

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Plaintiff’s complaint names one defendant, Stacy Witbeck. Plaintiff’s jurisdictional

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statement states: “Defendant(s), perform business attends this court responsible.” ECF No. 1 at 1.

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Plaintiff states venue is appropriate because he seeks a “grand award” that exceeds $79,000.1 Id.

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Plaintiff states his causes of action are: 1) injury; 2) breach of contract; 3) negligence; 4)

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discrimination; and 5) assault. Id. at 2. Plaintiff appears to allege he was caused some

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undescribed injury that has lasted 8 years. Id. His breach of contract claim concerns an

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allegation of events in 2016 and 2017. Id. The allegations are unclear, but it may be that

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Defendant is an employee of AIG Insurance. Plaintiff’s entire allegation of discrimination is:

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“Defendants did discriminate fair provisions should be apply available plaintiff while he was

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attends injury claim court.” Id. Plaintiff’s assault claim states Defendant “did commit acts to

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assault” and mentions the sending of a rude email. Id.

The Complaint

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C.

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The complaint does not sufficiently plead a basis for federal jurisdiction. Plaintiff does

Analysis

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not plead a federal statute upon which his claim is based. As Plaintiff mentions the amount

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exceeding $79,000, he may be attempting to base jurisdiction on diversity of citizenship, but

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Plaintiff does not allege his citizenship or that of Defendant.2 Plaintiff and Defendant must be

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citizens of different states for diversity jurisdiction. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68

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(1996) (diversity jurisdiction requires “complete diversity of citizenship” where “the citizenship

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of each plaintiff is diverse from the citizenship of each defendant.”).

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The amount in controversy is not relevant to the venue determination. See 28 U.S.C. § 1391.
The Civil Cover Sheet submitted by Plaintiff states that there is federal question jurisdiction,
and the boxes are checked indicating both Plaintiff and Defendant are citizens of California. ECF
No. 1-1.
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The complaint does not comply with Federal Rule of Civil Procedure 8(a)(1)-(2) as it does

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not contain a “short and plain” statement setting forth the grounds for federal jurisdiction, or a

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short and plain statement showing Plaintiff’s entitlement to relief. Plaintiff’s first cause of action,

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“injury” is not legally cognizable; injury is a requirement of standing and an element of certain

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other substantive claims. Plaintiff’s second claim for breach of contract fails to state a claim.

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Under California law, the elements of a claim for breach of contract are: 1) the existence of a

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contract; 2) a plaintiff’s performance or excuse for nonperformance; 3) a defendant’s breach; and

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4) resulting damage to plaintiff. Reinhardt v. Gemini Motor Transport, 879 F.Supp.2d 1138,

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1143 (E.D. Cal. 2012). Plaintiff does not clearly allege that there was a contract, or in what

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manner it was breached. Plaintiff’s third count fails to state a claim of negligence. See Cisco

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Systems, Inc. v. STMicroelectronics, 77 F.Supp.3d 887, 895 (N.D. Cal. 2014) (“To state a

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cognizable claim for negligence under California law, plaintiff must establish four required

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elements: (1) duty; (2) breach; (3) causation; and (4) damages.”). Plaintiff’s allegations of

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negligence are unclear. It appears he believes Defendant did not contact him in a timely manner,

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or perhaps that rules of the Department of Insurance were violated. The allegations in support of

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Plaintiff’s claims of discrimination and assault are conclusory.

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Accordingly, the complaint does not establish this court’s jurisdiction, does not comply

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with Rule 8, and fails to state a claim on which relief may be granted. However, Plaintiff is

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proceeding pro se and a pro se litigant should be given leave to amend unless it is absolutely clear

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that the deficiencies cannot be cured by amendment. Akhtar, 698 F.3d at 1212 (9th Cir. 2012).

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Rather than recommending dismissal of the action, the undersigned will provide Plaintiff an

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opportunity to amend the complaint to allege a proper basis for jurisdiction and facts supporting a

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cognizable cause of action.

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II. AMENDING THE COMPLAINT

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If plaintiff chooses to amend the complaint, the amended complaint must allege facts

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

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

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numbered paragraphs, with each paragraph number being one greater than the one before, each
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paragraph having its own number, and no paragraph number being repeated anywhere in the

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

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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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The amended complaint must not force the Court or the Defendant to guess at what is

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being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177-80 (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 should contain specific allegations as to the actions of each named defendant.

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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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Plaintiff’s amended complaint must also clarify whether the intended plaintiff is Shannon

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O. Murphy as an individual, or the plaintiff is Sheetmetal & Associates. The complaint’s caption

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lists Mr. Murphy dba Sheetmetal & Associates. An individual may appear pro se, but a

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corporation must appear through counsel. See CLD Const. Inc. v. City of San Ramon, 120

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Cal.App.4th 1141, 1145 (Cal. Ct. App. 2004) (“However, under a long-standing common law rule

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of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record

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in propria persona, nor can it represent itself through a corporate officer, director or other

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employee who is not an attorney. It must be represented by licensed counsel in proceedings

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before courts of record.”).
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III. 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

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that addresses the defects set forth above. The amended complaint must include a

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sufficient jurisdictional statement and comply with Rule 8. If Plaintiff fails to timely

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comply with this order, the undersigned may recommend that this action be dismissed.

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3. Alternatively, if Plaintiff no longer wishes to pursue this action, Plaintiff may file a notice

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of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil

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Procedure.

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SO ORDERED.

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DATED: March 6, 2025

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