(PS) Bobo v. Countrywide Home Loans ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES LEWIS BOBO, No. 2:19-cv-756-MCE-EFB PS 12 Plaintiff, 13 v. ORDER 14 COUNTRYWIDE HOME LOANS, 15 Defendant. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 22 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 23 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 24 below, plaintiff’s complaint fails to state a claim and must therefore be dismissed. 25 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 8 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 9 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Under this standard, the court must accept as true the allegations of the complaint in 11 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 12 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 13 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 14 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 15 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 16 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 17 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 18 Plaintiff’s complaint is nearly devoid of factual allegations. The complaint suggest that 19 plaintiff received a notice from the Department of Housing and Urban Development stating that 20 plaintiff’s “property is in foreclosure” and “may be sold without any court action.” ECF No. 1 at 21 1. Plaintiff then alleges “trespass occupy property w/o consent retake land after legal removal.” 22 Id. Plaintiff requests one billion dollars in damages “or half what it [sic] worth for damage over 23 past 18 yrs.” Id. 24 It is not clear from these allegations what claim plaintiff is attempting to assert. 25 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. See Jones v. 26 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (a complaint must give fair notice 27 and state the elements of the claim plainly and succinctly). Plaintiff is granted leave to file an 28 amended complaint, if he can allege a cognizable legal theory and sufficient facts in support of 1 that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 2 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 3 their complaints). Should plaintiff choose to file an amended complaint, the amended complaint 4 shall clearly set forth the allegations against defendant and shall specify a basis for this court’s 5 subject matter jurisdiction. It shall also plead plaintiff’s claims in “numbered paragraphs, each 6 limited as far as practicable to a single set of circumstances,” as required by Federal Rule of Civil 7 Procedure 10(b), and shall be in double-spaced text on paper that bears line numbers in the left 8 margin, as required by Eastern District of California Local Rules 130(b) and 130(c). Any 9 amended complaint shall also use clear headings to delineate each claim alleged and against 10 which defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead 11 clear facts that support each claim under each header. 12 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 13 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 14 complete in itself. This is because, as a general rule, an amended complaint supersedes the 15 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 16 plaintiff files an amended complaint, the original no longer serves any function in the case. 17 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 18 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 19 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 20 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 21 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 22 may result in a recommendation that this action be dismissed. See Local Rule 110. 23 Accordingly, IT IS ORDERED that: 24 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 25 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 26 ///// 27 ///// 28 ///// 1 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 2 | complaint. The amended complaint must bear the docket number assigned to this case and must 3 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 4 || accordance with this order will result in a recommendation this action be dismissed. 5 | DATED: November 25, 2019. 6 tid, PDEA 7 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28