(PS) Van Den Heuvel v. Freas ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HEUVEL, No. 2:20-cv-00352-TLN-CKD PS 12 Plaintiff, 13 v. ORDER 14 EDDIE FREAS et al., (ECF No. 2) 15 Defendants. 16 17 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 18 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local 19 Rule 302(c)(21). 20 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable 21 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 22 pauperis will be granted. 28 U.S.C. § 1915(a). 23 The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 24 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 25 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 26 § 1915(e)(2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. 4 In order to avoid dismissal for failure to state a claim a complaint must contain more than 5 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 6 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim 9 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 10 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 12 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 13 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 14 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 15 U.S. 232, 236 (1974). 16 Here, plaintiff’s complaint is a form-complaint for negligence in diversity actions. (See 17 ECF No. 1.) However, plaintiff, a citizen of California, is suing two citizens of California, 18 depriving this court of diversity jurisdiction. (Id.) It appears that plaintiff is attempting to allege 19 claims premised on 42 U.S.C. § 1983 for deprivation of his constitutional rights. However, 20 plaintiff does not set forth what rights were violated, or provide the court with a short plain 21 statement of his claim as to how these rights were violated. To the extent that plaintiff cites the 22 ADA, plaintiff does not provide any explanation of how his factual assertions resulted in 23 defendants violating the ADA. 24 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 25 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 26 court has determined that the complaint does not contain a short and plain statement as required 27 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 28 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 1 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at 2 least some degree of particularity overt acts which defendants engaged in that support plaintiff’s 3 claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), 4 the complaint must be dismissed. The court will, however, grant leave to file an amended 5 complaint. 6 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional 7 grounds upon which the court’s jurisdiction depends Fed. R. Civ. P. 8(a). Further, plaintiff must 8 demonstrate how the conduct complained of has resulted in a deprivation of plaintiff’s federal 9 rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 10 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 11 make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended 12 complaint be complete in itself without reference to any prior pleading. This is because, as a 13 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 14 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 15 longer serves any function in the case. Therefore, in an amended complaint, as in an 16 original complaint, each claim and the involvement of each defendant must be sufficiently 17 alleged. 18 In accordance with the above, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted; 20 2. Plaintiff’s complaint is dismissed; and 21 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 22 complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the 23 Local Rules of Practice; the amended complaint must bear the docket number assigned this case 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 | and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the 2 | amended complaint; failure to file an amended complaint in accordance with this order will result 3 | ina recommendation that this action be dismissed. 4 | Dated: March 27, 2020 f° Lf i, / CAN fu fl. ay > CAROLYN K. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 16.352.ifp 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28