(PS) Sharma v. Hussain ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JANAVI SHARMA, No. 2:20-cv-01154-JAM-CKD PS 12 Plaintiff, 13 v. ORDER 14 JAFFAR HUSSAIN, et al., (ECF No. 2) 15 Defendants. 16 17 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 18 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by 19 Local 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 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 17 unable to determine whether the current action is frivolous or fails to state a claim for relief. 18 Plaintiff appears to allege that her husband inappropriately used plaintiff’s citizenship to gain 19 immigration status. (See ECF No. 1 at 12.) Plaintiff’s complaint names fifteen defendants but 20 fails to mention fourteen of these defendants in the factual portion of her complaint. (Id.) As to 21 the defendant she does mention, her husband, the factual assertions are so conclusory they fail to 22 provide any notice to defendant of what is being alleged and how he is potentially liable. For 23 example, plaintiff, in passing, mentions torture, property damage, and threats without alleging any 24 specific, overt act. (Id.) 25 Thus, the court determines that the complaint does not contain a short and plain statement 26 as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading 27 policy, a complaint must give fair notice and state the elements of the claim plainly and 28 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff 1 must allege with at least some degree of particularity overt acts which defendants engaged in that 2 support plaintiff’s claim. Id. 3 Additionally, plaintiff has failed to establish that the court has federal question jurisdiction 4 in this matter. As the basis for jurisdiction, plaintiff cites to 8 U.S.C. § 1227 (deportable aliens), 5 multiple sections of the criminal code, 2 U.S.C. § 1331 (providing certain rights to congressional 6 employees), and the Fair Housing Act. (ECF No. 1 at 9.) A majority of the statutes cited by 7 plaintiff, such as those contained in the criminal code, do not provide courts with jurisdiction over 8 a plaintiff’s civil complaint. This is because, generally, criminal statutes do not provide for a 9 private cause of action nor do they generally form a basis for civil liability. See, e.g., Aldabe v. 10 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (finding that 18 U.S.C. §§ 241, 242 do not create a 11 private right of action). To the extent that plaintiff cites to statutes that could, potentially, form 12 the basis of jurisdiction, such as the Fair Housing Act, plaintiff has failed to include any facts in 13 her complaint that would allow the court to reasonably infer jurisdiction based on those statutes. 14 Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2) and 15 failed to provide a basis of jurisdiction, the complaint must be dismissed. The court will, 16 however, grant leave to file an amended complaint. 17 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional 18 grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a). 19 Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation 20 of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 21 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 22 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 23 complaint be complete in itself without reference to any prior pleading. This is because, as a 24 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 25 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 26 longer serves any function in the case. Therefore, in an amended complaint, as in an 27 original complaint, each claim and the involvement of each defendant must be sufficiently 28 alleged. MASS 2 CUVEE EMT EAINIT NINES VVC DO PIO Vee OY IT Mt 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiffs request to proceed in forma pauperis (ECF No. 2) is granted; 3 2. Plaintiffs complaint is dismissed; and 4 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 5 | complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the 6 | Local Rules of Practice; the amended complaint must bear the docket number assigned this case 7 | and must be labeled “Amended Complaint”; failure to file an amended complaint in accordance 8 | with this order will result in a recommendation that this action be dismissed. 9 | Dated: July 23, 2020 i; dp. Al bie 10 CAROLYN K.DELANEY. 11 UNITED STATES MAGISTRATE JUDGE 12 13 16.1154.ifplta 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28