(PS) Lewis v. Glick ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK JEROME LEWIS, No. 2:20-cv-346-TLN-EFB PS 12 Plaintiff, 13 v. ORDER 14 JAMES GLICK; SAFETYNET WIRELESS; GINA THOMAS; VINCENT 15 THOMAS; and ERNEST MUNIUZ, 16 Defendants. 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, 562-563, 570 (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. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 10 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 11 theories. 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, 355 U.S. at 47). 20 Plaintiff brings this action against James Glick, Safetynet Wireless, Gina Thomas, Vincent 21 Thomas, and Ernest Muniuz. ECF No. 1 at 2-3. He alleges that defendant Glick used a “DHCS” 22 (presumably, Department of Health Care Services) account to fraudulently collect income and 23 started a business from “an account that was for [plaintiff’s] insurance policy.” Id. at 5. Glick 24 also allegedly opened a restaurant called “Bibia’s from a Safetynet wireless account belonging to 25 [plaintiff’s] phone” number. Id. The complaint also alleges that the three remaining individual 26 defendants fraudulently received “funds for a DHCS account belonging to [plaintiff’s] insurance 27 policy.” Id. 28 ///// 1 But the complaint does not identify any specific cause of action, nor does it identify the 2 specific statute defendant purportedly violated. And it is not clear from plaintiff’s allegation what 3 claim he is attempting to assert. Accordingly, plaintiff’s compliant must be dismissed for failure 4 to state a claim. Plaintiff will be granted leave to file an amended complaint, if he can allege a 5 cognizable legal theory against a proper defendant and sufficient facts in support of that 6 cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 7 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 8 their complaints). Should plaintiff choose to file an amended complaint, the amended complaint 9 shall clearly set forth the allegations against each defendant and shall specify a basis for this 10 court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in 11 “numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as 12 required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper 13 that bears line numbers in the left margin, as required by Eastern District of California Local 14 Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each 15 claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 16 10(b), and must plead clear facts that support each claim under each header. 17 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 18 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 19 complete in itself. This is because, as a general rule, an amended complaint supersedes the 20 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 21 plaintiff files an amended complaint, the original no longer serves any function in the case. 22 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 23 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 24 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 25 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 26 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 27 may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 28 ///// 1 Accordingly, it is hereby ORDERED that: 2 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 3 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 4 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 5 || complaint. The amended complaint must bear the docket number assigned to this case and must 6 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 7 || accordance with this order will result in a recommendation this action be dismissed. 8 | DATED: March 19, 2020. 9 10 “ EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28