Stricklin v. United States of America et al

Filing 12

ORDER dismissing 1 Complaint with leave to amend pursuant to 28 U.S.C. § 1915. Plaintiff may file an amended complaint no later than December 5, 2017. The case management conference previously set for November 17, 2017 is continued to January 26, 2018 at 2:00 PM. Signed by Chief Magistrate Judge Joseph C. Spero on November 7, 2017. (jcslc2S, COURT STAFF) (Filed on 11/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALIVIA J. STRICKLIN,

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Case No. 17-cv-04733-JCS

Plaintiff,
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v.

ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915

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UNITED STATES OF AMERICA, et al.,

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Re: Dkt. No. 1

Defendants.

United States District Court
Northern District of California

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I.

INTRODUCTION
Plaintiff Alivia J. Stricklin, pro se, brings this action naming the United States of America,

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the Department of the Navy, the NASA Ames Research Center, and Jack Henry Glazer as

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defendants. The Court previously granted Stricklin‟s application to proceed in forma pauperis and

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now reviews the sufficiency of her complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). For the

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reasons discussed below, the complaint is hereby DISMISSED with leave to amend. Stricklin

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may file an amended complaint no later than December 5, 2017.1

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The case management conference previously scheduled for November 17, 2017 is

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CONTINUED to January 26, 2018 at 2:00 PM in Courtroom G of the federal courthouse at 450

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Golden Gate Avenue in San Francisco, California.

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II.

LEGAL STANDARD
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave

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to proceed in forma pauperis, courts must engage in screening and dismiss any claims which:

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(1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek

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Stricklin has consented to the jurisdiction of the undersigned magistrate judge for all purposes
pursuant to 28 U.S.C. § 636(c). Because no other party has yet been served or appeared,
Stricklin‟s consent is sufficient for the undersigned to review her complaint.

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see

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Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Rule 8(a)(2) of the Federal Rules of Civil

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Procedure provides that a pleading must contain a “short and plain statement of the claim showing

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that the pleader is entitled to relief.” A complaint that lacks such statement fails to state a claim

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and must be dismissed.
In determining whether a plaintiff fails to state a claim, the court assumes that all factual

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allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th

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Cir. 1995). However, “the tenet that a court must accept a complaint‟s allegations as true is

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inapplicable to legal conclusions [and] mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The pertinent

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United States District Court
Northern District of California

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question is whether the factual allegations, assumed to be true, “state a claim to relief that is

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plausible on its face.” Id. (citing Twombly, 550 U.S. at 570). Thus, to meet this requirement, the

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complaint must be supported by factual allegations. Id.

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Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must

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“construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v.

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Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). “A district court should not dismiss a

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pro se complaint without leave to amend unless „it is absolutely clear that the deficiencies of the

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complaint could not be cured by amendment.‟” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

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2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203−04 (9th Cir. 1988) (per curiam)).

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Further, when it dismisses the complaint of a pro se litigant with leave to amend, “the district court

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must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the

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litigant uses the opportunity to amend effectively.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d

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1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant

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will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th

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Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).

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III.

ANALYSIS

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Stricklin‟s complaint is difficult to follow. It includes conclusory references to, for

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example, “social security misuse” and “recording of private communications,” Compl. (dkt. 1) ¶ 7,
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stalking, id. ¶ 9, the right to contract, id. ¶ 13, hazing, id. ¶ 16, rules of conduct for government

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attorneys, id. ¶ 21, and the Violence Against Women Act, id. ¶ 29. It is not clear how the limited

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factual allegations included in the complaint relate to those theories or to each other. Such

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allegations range from an incident in 1979 in which Defendant Glazer allegedly took Stricklin to a

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remote location in San Francisco, id. ¶ 2, to mail being taken from a mailbox, id. ¶ 9, to Stricklin

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purchasing a “space pen” in Berkeley and a box of chocolates in Vallejo, id. ¶ 11, to Stricklin

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receiving a telephone call in Illinois from a young child several weeks after she had dreamt about

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a child being carried into a building in San Francisco, id. ¶ 25, to Glazer‟s alleged history of “nine

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or ten plus marriages,” id. at 27.

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United States District Court
Northern District of California

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As an example, the paragraph of the complaint addressing the 1979 incident in San
Francisco reads as follows:
Late Fall of 1979, Defendant‟s Agent Mr. Jack Henry Glazer ask if I
could attend a military reception? I confirmed yes (set on meeting
other USNR). The Defendant‟s officer and agent “neglected to
respect his “military” position,” mislead other military officers
under his leadership by designing a “ceremonial hazing.” Three
officers who were invited show-up (dressed blue” ties and spit
shined shoes). The Navy Officers acted negligently, carelessly,
and/or unlawfully in the course and scope of their military statuses.
Four men taking a woman to the edge of San Francisco, ocean
across highway (three bagpipers and instruments?). Dry yellow
bushes/brush over everyone‟s head dead bottles and cans (perfect
scenario for assault/abuse). Within a few minutes a “camera showed
up” in the hand of the Defendants, Officer Mr. Jack Henry Glaser...

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Id. ¶ 2 (sic throughout; ellipsis in original). Although this is one of Stricklin‟s more specific

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factual allegations in comparison to the rest of the complaint, it is not clear what Stricklin alleges

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actually happened during the 1979 incident or how it relates to any theory of liability.

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Even construing Stricklin‟s allegations liberally, the Court cannot discern any set of

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facts in the complaint supporting a plausible claim for relief. The complaint is therefore

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DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief

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may be granted. If Stricklin wishes to pursue this action, she may file an amended complaint that,

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first, clearly and plainly sets forth all of the facts that she believes are relevant, and then separately

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lists each legal claim that Stricklin believes arises from those facts.

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IV.

CONCLUSION
For the reason discussed above, Stricklin‟s complaint is DISMISSED for failure to state a

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claim on which relief may be granted. Stricklin may file an amended complaint no later than

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December 5, 2017. Any such amended complaint must include the caption and civil case number

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used in this order (17-cv-04733-JCS) and the words FIRST AMENDED COMPLAINT on the

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first page. Because an amended complaint completely replaces the previous complaint, any

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amended complaint may not incorporate claims or allegations of Stricklin‟s original complaint by

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reference, but instead must include all of the facts and claims Stricklin wishes to present and all of

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the defendants she wishes to sue. See Ferdik, 963 F.2d at 1262.

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Stricklin, who is not represented by counsel, is encouraged to consult with the Federal Pro

United States District Court
Northern District of California

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Bono Project‟s Legal Help Center in either of the Oakland or San Francisco federal courthouses

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for assistance if she intends to file an amended complaint. The San Francisco Legal Help Center

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office is located in Room 2796 on the 15th floor at 450 Golden Gate Avenue, San Francisco,

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California. The Oakland office is located in Room 470-S on the 4th floor at 1301 Clay Street,

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Oakland, California. Appointments can be made by calling [phone] or signing up in the

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appointment book located outside either office, and telephone appointments are available.

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Lawyers at the Legal Help Center can provide basic assistance to parties representing themselves

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but cannot provide legal representation.

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IT IS SO ORDERED.

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Dated: November 7, 2017
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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