(PS) Johnson v. FBI ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN B. JOHNSON, No. 2:19-cv-2359-JAM-EFB PS 12 Plaintiff, 13 v. ORDER 14 FEDERAL BUREAU OF INVESTIGATION, 15 Defendant. 16 17 18 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 19 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 20 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 21 Determining that plaintiff may proceed in forma pauperis does not complete the required 22 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 23 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 24 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 25 below, plaintiff’s complaint must be dismissed for failure to state a claim. 26 ///// 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 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 Under this standard, the court must accept as true the allegations of the complaint in 13 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 14 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 15 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 16 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 17 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 18 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 19 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 20 The allegations in plaintiff’s complaint are difficult to follow. It appears that plaintiff is 21 attempting to assert a Bivens2 claim against defendant the Federal Bureau of Investigation (“FBI”) 22 for violation of his due process rights. ECF No. 1 at 4. Plaintiff appears to claim that the FBI 23 deprived him of his due process rights by engaging in “revenge murder” and stripping him of “all 24 constitutional rights.” Id. These vague and conclusory allegations fail to state a due process 25 claim. But more significantly, federal agencies, such as the FBI, are not amendable to suit under 26 Bivens. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69-70 (2001). 27 2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 28 (1971). 1 Plaintiff further alleges that the FBI assaulted him and is trying to kill him. ECF No. 1 at 2 7. He also claims the FBI is blaming African American men for the “opioid epidemic” and going 3 to kill him and other African American men as a result. Id. at 5-6. But it is not clear from these 4 allegations what claim plaintiff is attempting to assert. Although the Federal Rules adopt a 5 flexible pleading policy, a complaint must give fair notice and state the elements of the claim 6 plainly and succinctly. Jones v. Community Rede v. Agency, 733 F. 2d 646, 649 (9th Cir. 1984). 7 Here, the complaint fails to apprise defendant and the court of the specific claim(s) these 8 allegations are intended to support. 9 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff 10 is granted leave to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 11 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any 12 deficiency in their complaints). Any such complaint must allege a cognizable legal theory and 13 sufficient facts to in support of that cognizable legal theory. Should plaintiff choose to file an 14 amended complaint, the amended complaint shall clearly set forth the allegations against 15 defendant and shall specify a basis for this court’s subject matter jurisdiction. It shall also plead 16 plaintiff’s claims in “numbered paragraphs, each limited as far as practicable to a single set of 17 circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in double- 18 spaced text on paper that bears line numbers in the left margin, as required by Eastern District of 19 California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings 20 to delineate each claim alleged and against which defendant or defendants the claim is alleged, as 21 required by Rule 10(b), and must plead clear facts that support each claim under each header. 22 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 23 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 24 complete in itself. This is because, as a general rule, an amended complaint supersedes the 25 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 26 plaintiff files an amended complaint, the original no longer serves any function in the case. 27 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 28 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1 | 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 2 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 3 || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 4 || may result in a recommendation that this action be dismissed. See Local Rule 110. 5 Accordingly, it is hereby ORDERED that: 6 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 7 2. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend, as provided herein. 8 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 9 | complaint. The amended complaint must bear the docket number assigned to this case and must 10 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 11 || accordance with this order will result in a recommendation this action be dismissed. 12 | DATED: March 19, 2020. tid, PDEA EDMUND F. BRENNAN 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28