(PS) Zhai v. Markstein Beverage Company ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANN ZHAI, No. 2:19-cv-1980 JAM DB PS 12 Plaintiff, 13 v. ORDER 14 MARKSTEIN BEVERAGE COMPANY, et al., 15 16 Defendants. 17 18 Plaintiff Ann Zhai proceeding in this action pro se. This matter was referred to the 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 20 before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 21 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about being injured in a traffic 22 accident. 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 and plaintiff will be granted leave to file an 27 amended complaint. 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 on October 10, 2017, a 13 driver for defendant Markstein Beverage Company and plaintiff were involved in a traffic 14 accident. (Compl. (ECF No. 1) at 1.) “Since then, a whole host of legal issues from this incident 15 have been uncovered.” (Id.) The complaint proceeds to identify nine defendants ranging from 16 the driver of the vehicle, the healthcare provider responsible for plaintiff’s medical care, the tire 17 manufacturer, the vehicle manufacturer, gasoline refineries, and the United States of America. 18 Over 65 pages the complaint asserts hundreds of causes of action against the defendants in a 19 vague and conclusory manner. 20 For example, the complaint alleges that defendant Bridgestone was “negligent by 21 drugging and/or poisoning with a whole host of toxins and carcinogens[.]” (Id. at 51.) That 22 “Refineries, distributors, and sellers, are negligent by drugging and/or poisoning living human 23 beings with MMT-NO via consumer mobile sources[.]” (Id. at 39.) That defendant Dignity 24 Healthcare was “criminally or recklessly negligent by preauthorizing, billing, and collecting 25 payment in advance by placing accounting/finance person stationing in the ER with patients[.]” 26 (Id. at 10.) The complaint is composed entirely of these vague and conclusory allegations without 27 providing any factual allegations in support. 28 //// 1 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 2 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 3 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 4 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 5 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 6 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 7 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 8 557). A plaintiff must allege with at least some degree of particularity overt acts which the 9 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 10 The complaint also alleges that the “United States of America is named as a co-defendant 11 based on [the] Federal Torts Claim Act.” (Compl. (ECF No. 1) at 4.) An action based on the 12 negligent or wrongful conduct of a government employee must be brought against the United 13 States as a claim pursuant to the Federal Tort Claims Act, (“FTCA”). 28 U.S.C. §§ 2671-2680; 14 see also Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (“the United States 15 is the only proper party defendant in an FTCA action”). The FTCA “vests the federal district 16 courts with exclusive jurisdiction over suits arising from the negligence of Government 17 employees.” Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992). 18 However, “[t]he timely filing of an administrative claim is a jurisdictional prerequisite to 19 the bringing of a suit under the FTCA and, as such, should be affirmatively alleged in the 20 complaint.” Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). Here, the complaint does 21 not allege that plaintiff filed an administrative claim in connection with this action. 22 Moreover, “[a] claimant must present a tort claim against the United States in writing to 23 the appropriate Federal agency within two years after injury.” Krueger v. Saiki, 19 F.3d 1285, 24 1286 (8th Cir. 1994) (citing 28 U.S.C. § 2401(b)); see also Hensley v. U.S., 531 F.3d 1052, 1056 25 (9th Cir. 2008) (“the statute provides that a tort claim ‘shall be forever barred’ unless it is 26 presented ‘within two years after such claim accrues’”). “The general rule, within the meaning of 27 the FTCA is that a tort claim accrues at the time of the plaintiff’s injury[.]” Attallah v. U.S., 955 28 F.2d 776, 779 (1st Cir. 1992). 1 Here, although the complaint does not allege any factual allegations with respect to the 2 FTCA, it does allege that the government granted “fuel additive certificate waivers[.]” (Id.) 3 Those waivers were likely granted many years before this action commenced. Plaintiff is 4 cautioned that the FTCA explicitly states that a “tort claim against the United States shall be 5 forever barred unless it is presented in writing to the appropriate Federal agency within two years 6 after such claim accrues[.]” 28 U.S.C. § 2401(b) (emphasis added). 7 III. Leave to Amend 8 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 9 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 10 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 11 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 12 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 13 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 14 court does not have to allow futile amendments). 15 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 16 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 17 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 18 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 19 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 20 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 21 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 22 1988)). 23 Here, given the vague and conclusory nature of the complaint’s allegations the 24 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. 25 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an 26 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended 27 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint 28 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 1 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While 2 legal conclusions can provide the complaint’s framework, they must be supported by factual 3 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from 4 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 5 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 6 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 7 in itself without reference to prior pleadings. The amended complaint will supersede the original 8 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 9 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 10 and identified in the body of the complaint, and each claim and the involvement of each 11 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 12 must also include concise but complete factual allegations describing the conduct and events 13 which underlie plaintiff’s claims. 14 CONCLUSION 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The complaint filed September 30, 2019 (ECF No. 1) is dismissed with leave to 17 amend.1 18 2. Within sixty days from the date of this order, an amended complaint shall be filed that 19 cures the defects noted in this order and complies with the Federal Rules of Civil Procedure and 20 the Local Rules of Practice.2 The amended complaint must bear the case number assigned to this 21 action and must be titled “Amended Complaint.” The amended complaint shall not exceed 22 twenty-five pages in length. 23 //// 24 //// 25 26 1 Plaintiff need not file another application to proceed in forma pauperis at this time unless 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. 1 3. Failure to comply with this order in a timely manner may result in a recommendation 2 that this action be dismissed. 3 DATED: March 30, 2020 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28