(PS) Bershell v. Loomis, Gardner and Brinks Armoured ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS E. BERSHELL, JR., No. 2:19-cv-02143-KJM-CKD PS 12 Plaintiff, 13 v. ORDER 14 LOOMIS, GARDNER AND BRINKS ARMOURED, et al., 15 Defendants. 16 17 18 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 19 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by 20 Local Rule 302(c)(21). 21 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable 22 to prepay fees and costs or give security for them. (See ECF No. 2.) Accordingly, the request to 23 proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff’s second motion to 24 proceed in forma pauperis, ECF No. 3, will be denied as moot. 25 The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 26 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 27 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 28 § 1915(e)(2). 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 14 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 16 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). 18 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 19 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 20 court has determined that the complaint does not contain a short and plain statement as required 21 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 22 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 23 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at 24 least some degree of particularity overt acts which each named defendant engaged in that support 25 plaintiff’s claim against the defendants. Id. Because plaintiff has failed to comply with the 26 requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, 27 however, grant leave to file an amended complaint. 28 //// 1 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional 2 | grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a). 3 | Farther, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation 4 | of plaintiffs federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 5 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 6 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 7 | complaint be complete in itself without reference to any prior pleading. This is because, as a 8 | general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 9 | F.2d 55,57 (Oth Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 10 || longer serves any function in the case. Therefore, in an amended complaint, as in an original 11 | complaint, each claim and the involvement of each defendant must be sufficiently alleged. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is granted; 14 2. Plaintiff's request to proceed in forma pauperis (ECF No. 3) is denied as moot; 15 3. Plaintiff's complaint (ECF No. 1) is dismissed; and 16 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 17 || complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the 18 | Local Rules of Practice; the amended complaint must bear the docket number assigned this case 19 | and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the 20 | amended complaint; failure to file an amended complaint in accordance with this order will result 21 | in a recommendation that this action be dismissed. 22 || Dated: November 21, 2019 bh rdf /f [ { gt 28 CAROLYN K DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 || 15 bershell2143.ifp-Ita 27 28