(PS) Lewis v. AT&T ( 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-461-KJM-EFB PS 12 Plaintiff, 13 v. ORDER 14 AT&T, INC., et al., 15 Defendants. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 22 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 23 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 24 below, plaintiff’s complaint must be dismissed for failure to state a claim. 25 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 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 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 8 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 9 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Under this standard, the court must accept as true the allegations of the complaint in 11 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 12 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 13 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 14 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 15 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 16 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 17 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 18 Plaintiff brings this action against fifteen defendants, including multiple 19 telecommunication companies and several state and county agencies. ECF No. 1 at 2-4. He 20 alleges that he had “a tru connect wireless account” with defendant AT&T. Id. at 6. He claims 21 that the Sacramento County Department of Human Assistance used an app to control his phone 22 and gain access to his emails, photos, text messages, and other data. Id. The complaint further 23 alleges that images of plaintiff have been posted online. Id. Based on these allegations, plaintiff 24 appears to allege claims for wire fraud and violation “the Consumer Protection of Privacy Act.” 25 Id. at 5. 26 To the extent plaintiff claims defendants committed wire fraud in violation of 18 U.S.C. 27 § 1343, his claim fails as a matter of law because that criminal statute does not create a private 28 right of action. See Hacker v. Hacker, 2015 WL 8780561, at *3 (E.D. Cal. Dec. 12 2015) (18 1 U.S.C. § 1343 does not provide a private right of action); Reynolds v. Wilkerson, 2014 WL 2 4062771, at *4 (N.D. Cal. Aug. 14, 2014) (same). 3 Plaintiff’s remaining claim is styled as violation of “the Consumer Protection of Privacy 4 Act.” ECF No. 1 at 5. It is not clear what specific cause of action plaintiff seeks to assert. He 5 might be attempting to allege a state law claim for violation of California’s Consumer Privacy 6 Act of 2018, Cal. Civ. Code §§ 1798.100, et seq. Plaintiff, however, has yet to assert a properly- 7 pleaded federal cause of action which precludes supplemental jurisdiction over his state law 8 claim. Further, plaintiff fails to establish diversity of citizenship that could support diversity 9 jurisdiction over a state law claim. See 28 U.S.C. § 1332(a); Bautista v. Pan American World 10 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (to invoke the court’s diversity jurisdiction, a 11 plaintiff must specifically allege the diverse citizenship of all parties, and that the matter in 12 controversy exceeds $75,000). The complaint indicates that plaintiff resides in Santa Barbara 13 County, California, and it also purports to assert claims against several county agencies, including 14 the Sacramento County Department of Human Assistance. See Moor v. Alameda County, 411 15 U.S. 693, 718 (1973) (“[F]or purposes of diversity of citizenship, political subdivisions are 16 citizens of their respective States.”). Thus, plaintiff has failed to establish diversity jurisdiction 17 over a state law claim. 18 Accordingly, plaintiff’s compliant must be dismissed for failure to state a claim. Plaintiff 19 will be granted leave to file an amended complaint. Any amended complaint must allege a 20 cognizable legal theory against a proper defendant and sufficient facts in support of that 21 cognizable legal theory. Should plaintiff choose to file an amended complaint, the amended 22 complaint shall clearly set forth the allegations against each defendant and shall specify a basis 23 for this court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims 24 in “numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as 25 required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper 26 that bears line numbers in the left margin, as required by Eastern District of California Local 27 Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each 28 ///// wOASe 2 ING IIE MVOC OPI ee AY OT Mt 1 | claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 2 | 10(b), and must plead clear facts that support each claim under each header. 3 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 4 | make an amended complaint complete. Local Rule 220 requires that an amended complaint be 5 || complete in itself. This is because, as a general rule, an amended complaint supersedes the 6 || original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 7 | plaintiff files an amended complaint, the original no longer serves any function in the case. 8 || Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 9 | alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 10 | 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 11 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 12 || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 13 || may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 14 Accordingly, it is hereby ORDERED that: 15 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 16 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 17 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 18 || complaint. The amended complaint must bear the docket number assigned to this case and must 19 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 20 || accordance with this order will result in a recommendation this action be dismissed. 21 || DATED: July 6, 2020. 22 tid. HDeMA 3 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28