(PS) Trotter v. Con Am Group ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CUPID MONIQUE TROTTER No. 2:19-cv-1490 KJM DB PS 12 Plaintiff, 13 v. ORDER 14 CON AM GROUP; CRSIENNA VISTA COMMUNITIES, 15 16 Defendants. 17 18 Plaintiff Cupid Monique Trotter is proceeding in this action pro se. This matter was 19 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 20 Pending before the court are plaintiff’s complaint and motion to proceed in forma pauperis 21 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 6.) Therein, plaintiff complains about conditions 22 in public housing. 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 26 below, plaintiff’s complaint will be dismissed with leave to amend. 27 //// 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 7 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 8 judgment for the relief the pleader seeks. 9 Fed. R. Civ. P. 8(a). 10 II. Plaintiff’s Complaint 11 Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing 12 that plaintiff is entitled to relief. In this regard, the complaint alleges that the defendants are the 13 “owner along with property agency” that is “supposed to maintain the property” plaintiff lives at 14 pursuant to a contract between defendants and the federal government. (Compl. (ECF No. 1) at 5, 15 7.) The complaint asserts that the “main reason” for this action is for “money returned for Breach 16 of a Federal Government signed contract” based on defendants’ failure to maintain the subject 17 property. (Id. at 7.) 18 The complaint, however, fails to allege any facts in support of a claim for breach of 19 contract. See E.D.C. Technologies, Inc. v. Seidel, 216 F.Supp.3d 1012, 1015 (N.D. Cal. 2016) 20 (“The elements of a cause of action for breach of contract are (1) the existence of the contract, (2) 21 plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the 22 resulting damages to plaintiff.”). 23 Moreover, it does not appear from the complaint that plaintiff is a party to the contract 24 between defendants and the federal government. Usually “only a party to a contract or an 25 intended third-party beneficiary may sue to enforce the terms of a contract or obtain an 26 appropriate remedy for breach.” GECCMC 2005-C1 Plummer Street Office Ltd. Partnership v. 27 JPMorgan Chase Bank, Nat. Ass’n, 671 F.3d 1027, 1033 (9th Cir. 2012). 28 //// 1 The complaint also contains a string of citations to numerous statutes and general 2 reference to the “First amendment . . . ADA Act,” and “Civil Rights,” without providing any 3 factual allegations in support or even identifying which defendant violated which law. (Compl. 4 (ECF No. 1) at 4, 7.) Although the Federal Rules of Civil Procedure adopt a flexible pleading 5 policy, a complaint must give the defendant fair notice of the plaintiff’s claims and must allege 6 facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 7 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 8 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 9 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 10 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 11 557). A plaintiff must allege with at least some degree of particularity overt acts which the 12 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 13 Plaintiff may be attempting to assert a claim pursuant the Fair Housing Act, 42 U.S.C. § 14 3601, (“FHA”), et. seq. The FHA prohibits discrimination against “any person in the terms, 15 conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities 16 in connection therewith, because of race, color, religion, sex, familial status, or national origin,” 17 42 U.S.C. § 3604(b), or “because of a handicap,” 42 U.S.C. § 3604(f)(2). “To state a claim under 18 § 3604, a plaintiff must show that he or she was subjected to different ‘terms, conditions, or 19 privileges because of a protected status.’” Cabrera v. Alvarez, 977 F.Supp.2d 969, 975 (N.D. Cal. 20 2013) (citing 42 U.S.C. § 3604(b)). 21 III. Leave to Amend 22 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 23 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 24 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 25 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 26 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 27 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 28 court does not have to allow futile amendments). 1 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 2 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 3 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 4 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 5 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 6 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 7 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 8 1988)). 9 Here, given the vague and conclusory nature of the complaint’s allegations, the 10 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. 11 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an 12 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended 13 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint 14 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 15 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While 16 legal conclusions can provide the complaint’s framework, they must be supported by factual 17 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from 18 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 19 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 20 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 21 in itself without reference to prior pleadings. The amended complaint will supersede the original 22 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 23 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 24 and identified in the body of the complaint, and each claim and the involvement of each 25 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 26 must also include concise but complete factual allegations describing the conduct and events 27 which underlie plaintiff’s claims. 28 //// 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The complaint filed August 5, 2019 (ECF No. 1) is dismissed with leave to 4 amend.1 5 2. Within twenty-eight days from the date of this order, an amended complaint shall be 6 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 7 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number 8 assigned to this action and must be titled “Amended Complaint.” 9 3. Failure to comply with this order in a timely manner may result in a recommendation 10 that this action be dismissed. 11 DATED: December 13, 2019 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Plaintiff need not file another application to proceed in forma pauperis at this time unless 26 plaintiff’s financial condition has improved since the last such application was submitted. 27 2 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.