(PS) Miner v. Property Concepts Inc. ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MADIHA MINER, No. 2:19-cv-01625-MCE-CKD PS 12 Plaintiff, 13 v. ORDER 14 PROPERTY CONCEPTS, INC., et al., 15 Defendants. 16 17 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 18 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by 19 Local Rule 302(c)(21). 20 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable 21 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 22 pauperis will be granted. 28 U.S.C. § 1915(a). 23 The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 24 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 25 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 26 § 1915(e)(2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. 4 In order to avoid dismissal for failure to state a claim a complaint must contain more than 5 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 6 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim 9 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 10 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 12 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 13 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 14 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 15 U.S. 232, 236 (1974). 16 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 17 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 18 court has determined that the complaint does not contain a short and plain statement as required 19 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 20 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 21 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at 22 least some degree of particularity overt acts which defendants engaged in that support plaintiff’s 23 claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), 24 the complaint must be dismissed. The court will, however, grant leave to file an amended 25 complaint. 26 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional 27 grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a). 28 Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation 1 | of plaintiffs federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 2 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 3 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 4 | complaint be complete in itself without reference to any prior pleading. This is because, as a 5 | general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 6 | F.2d 55,57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 7 | longer serves any function in the case. Therefore, in an amended complaint, as in an 8 || original complaint, each claim and the involvement of each defendant must be sufficiently 9 | alleged. 10 Finally, because plaintiff’s complaint has been dismissed with leave to amend, the court 11 | will deny plaintiff's motion for cease and desist order (ECF No. 2) as moot and without prejudice. 12 | However, plaintiff is cautioned that the motion as filed is defective for a number of reasons, 13 | including that it was not properly noticed under Local Rule 230. To the extent plaintiff intended 14 | the motion for cease and desist order to be a motion for temporary restraining order, it fails to 15 | comply with Local Rule 231. 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff's request to proceed in forma pauperis (ECF No. 3) is granted; 18 2. Plaintiff's complaint (ECF No. 1) is dismissed; 19 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 20 | complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the 21 | Local Rules of Practice; the amended complaint must bear the docket number assigned this case 22 | and must be labeled “Amended Complaint’; plaintiff must file an original and two copies of the 23 | amended complaint; failure to file an amended complaint in accordance with this order will result 24 | in a recommendation that this action be dismissed; and 25 4. Plaintiff's motion for cease and desist order (ECF No. 2) is denied without prejudice. 26 | Dated: September 12, 2019 bh rdf ht / (o— 7 CAROLYN K DELANEY 28 |) 15 miner1625.ifp-tta UNITED STATES MAGISTRATE JUDGE