McCue v. Toyota Motor Sales, U.S.A., Inc.

Filing 8

ORDER DISMISSING Complaint with Prejudice for Failing to State a Claim. Signed by Judge Cynthia Bashant on 6/25/15.(All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 GARRY L. MCCUE, 13 Case No. 15-cv-1059-BAS(MDD) Plaintiff, 14 15 v. 16 17 18 ORDER DISMISSING COMPLAINT WITH PREJUDICE FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) TOYOTA MOTOR SALES, U.S.A., INC., Defendant. 19 20 Plaintiff Garry L. McCue, a non-prisoner proceeding pro se, filed a complaint 21 for several alleged injuries arising from an odor emanating from his 2008 Toyota 22 Camry. This action is brought against Defendant Toyota Motor Sales, U.S.A., Inc. 23 The Court previously granted Plaintiff leave to proceed in forma pauperis, but 24 dismissed his complaint with leave to amend for failure to state a claim under 28 25 U.S.C. § 1915(e)(2)(B)(ii) and for lack of subject matter jurisdiction. On June 25, 26 2015, Plaintiff timely filed his amended complaint. 27 28 For the following reasons, the Court DISMISSES WITH PREJUDICE the action in its entirety for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). -1- 15cv1059 1 I. SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 2 Notwithstanding payment of any filing fee or portion thereof, a complaint filed 3 by any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject 4 to a mandatory and sua sponte review and dismissal by the court to the extent it is 5 “frivolous, malicious, failing to state a claim upon which relief may be granted, or 6 seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. § 7 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions 8 of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 9 1122, 1126-27 (9th Cir. 2000) (en banc). 10 Prior to its amendment by the Prison Litigation Reform Act, the former 28 11 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious 12 claims. Lopez, 203 F.3d at 1130. Section 1915(e)(2), however, mandates that the court 13 reviewing a complaint filed pursuant to the IFP provisions of § 1915 make and rule on 14 its own motion to dismiss before directing that the complaint be served by the U.S. 15 Marshal pursuant to Federal Rule of Civil Procedure 4(c)(3). Lopez, 203 F.3d 1127 16 (“[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma 17 pauperis complaint that fails to state a claim.”); see also Barren v. Harrington, 152 18 F.3d 1193, 1194 (9th Cir. 1998) (noting the “the language of § 1915(e)(2)(B)(ii) 19 parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). As currently 20 pleaded, it appears as though Plaintiff’s complaint is subject to sua sponte dismissal 21 under 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which relief 22 may be granted. 23 In the two-page handwritten amended complaint, Plaintiff alleges several 24 different physical ailments from the earlier complaint—including asthma, pacemaker 25 syndrome, headache, coughing, and chest pain1—which all appear to be connected to 26 an odor emanating from the dashboard of his 2008 Toyota Camry. The Court 27 1 28 Plaintiff previously alleged that he suffered from glaucoma, a “heart condition,” bowel obstructions, and depression as a result of the dashboard odor. It is unclear what prompted the drastic change in alleged injuries. -2- 15cv1059 1 previously stated that it was unclear exactly what the claim or claims asserted against 2 Defendant were. That has not changed. The first page of the amended complaint does 3 not assert any legal claim for relief. And the second page has a list. That list mentions 4 court documents, statutes, and letters, but nothing that adequately describes a legal 5 claim for relief. Once again, the complaint is so incomprehensible that the Court is 6 unable to determine what claim is asserted and whether Plaintiff states a cognizable 7 claim for relief. Moreover, the amended complaint does not contain a short and plain 8 statement as required by Federal Rule of Civil Procedure 8(a)(2). 9 10 II. CONCLUSION & ORDER 11 In light of the foregoing, the Court DISMISSES WITH PREJUDICE 12 Plaintiff’s complaint in its entirety for failing to state a claim upon which relief can be 13 granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). See Cervantes v. Countrywide 14 Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.2011) (“[A] district court may dismiss 15 without leave where . . . amendment would be futile.”); McHenry v. Renne, 84 F.3d 16 1172, 1177-79 (9th Cir. 1996) (holding that court may dismiss action pursuant to 17 Federal Rule of Civil Procedure 41(b) if Plaintiff fails to comply with previous court 18 order regarding amendment). 19 IT IS SO ORDERED. 20 21 DATED: June 25, 2015 22 Hon. Cynthia Bashant United States District Judge 23 24 25 26 27 28 -3- 15cv1059

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