(PS) Kappia v. U.S. Department of Education ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOE MAMERY KAPPIA II, No. 2:19-cv-2091 MCE DB PS 12 Plaintiff, 13 v. ORDER 14 UNITED STATES DEPARTMENT OF EDUCATION, et al., 15 16 Defendants, 17 18 Plaintiff Joe Kappia is 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 & 3.) Therein, plaintiff complains about a violation of the Freedom 22 of Information Act. 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 “[t]his Action is under 13 the Freedom of Information Act . . . to enforce the public’s right to information about student debt 14 collection practices of the US Department of Education.” (Compl. (ECF No. 1) at 4.) 15 The Freedom of Information Act, (“FOIA”), 5 U.S.C. § 552, “confers jurisdiction on a district 16 court to prevent an agency from withholding records, unless the information sought falls within 17 one of the nine exemptions enumerated in 552(b).” Spurlock v. F.B.I., 69 F.3d 1010, 1015 (9th 18 Cir. 1995). However, “federal jurisdiction [to order disclosure] is dependent on a showing that an 19 agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’” Kissinger v. Reporters 20 Committee for Freedom of the Press, 445 U.S. 136, 150 (1980) (quoting 5 U.S.C. § 552)). 21 “Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force 22 an agency to comply with the FOIA’s disclosure requirements.” Department of Justice v. Tax 23 Analysts, 492 U.S. 136, 142 (1989). 24 Plaintiff’s complaint does not allege that any federal agency improperly withheld agency 25 records. The complaint does not even allege that plaintiff requested any records from the 26 defendant. Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 27 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 28 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 1 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 2 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 3 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 4 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 5 557). A plaintiff must allege with at least some degree of particularity overt acts which the 6 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 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 October 17, 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.” 22 3. Failure to comply with this order in a timely manner may result in a recommendation 23 that this action be dismissed. 24 DATED: March 31, 2020 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 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.