(PS) Blackshire v. Bright ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 PATRICK BLACKSHIRE, No. 2:19-cv-1305-KJM-EFB PS 11 Plaintiff, 12 v. ORDER 13 OFFICER BRIGHT, 14 Defendant. 15 16 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 17 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 18 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 19 Determining that plaintiff may proceed in forma pauperis does not complete the required 20 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 21 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 22 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 23 below, plaintiff’s complaint must be dismissed for failure to state a claim. 24 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 25 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 26 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 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 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 2 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 3 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 4 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 5 relief above the speculative level on the assumption that all of the complaint’s allegations are 6 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 7 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 8 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 9 Under this standard, the court must accept as true the allegations of the complaint in 10 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 11 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 12 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 13 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 14 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 15 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 16 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 17 Plaintiff brings this action against the Sacramento City Police Department and police 18 officer Bright. ECF No. 1 at 4-5. The complaint’s allegations consist solely of the following 19 statement: “False Arrest, harrasment [sic], mistreatment Sunday 7-07-2019 on private property 20 use of force while I was calmly standing with arms tacked.” Id. at 5. 21 These allegations are too vague and conclusory to provide defendants with sufficient 22 notice of the factual basis for plaintiff’s claim(s). Jones v. Community Redev. Agency, 733 F.2d 23 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts 24 which defendants engaged in that support plaintiff’s claim. Id. The allegations must be short and 25 plain, simple and direct and describe the relief plaintiff seeks. Fed. R. Civ. P. 8(a); Swierkiewicz 26 v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 27 1125 (9th Cir. 2002). Plaintiff has not alleged facts which, if presented to any defendant, would 28 adequately put them on notice as to what claims are being brought against them. 1 Accordingly, plaintiff’s compliant must be dismissed for failure to state a claim. Plaintiff 2 will be granted leave to file an amended complaint, if he can allege a cognizable legal theory 3 against a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. 4 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se 5 litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff 6 choose to file an amended complaint, the amended complaint shall clearly set forth the allegations 7 against each defendant and shall specify a basis for this court’s subject matter jurisdiction. Any 8 amended complaint shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as 9 practicable to a single set of circumstances,” as required by Federal Rule of Civil Procedure 10 10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as 11 required by Eastern District of California Local Rules 130(b) and 130(c). Any amended 12 complaint shall also use clear headings to delineate each claim alleged and against which 13 defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts 14 that support each claim under each header. 15 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 16 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 17 complete in itself. This is because, as a general rule, an amended complaint supersedes the 18 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 19 plaintiff files an amended complaint, the original no longer serves any function in the case. 20 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 21 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 22 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 23 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 24 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 25 may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 26 III. Conclusion 27 Accordingly, it is hereby ORDERED that: 28 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 1 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 2 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 3 || complaint. The amended complaint must bear the docket number assigned to this case and must 4 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 5 || accordance with this order will result in a recommendation this action be dismissed. 6 || DATED: February 5, 2020. 7 tid, PDEA g EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28