(PS) Tautau v. Los Angeles Police Department ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TWYLLA TAUTAU, No. 2:19-cv-826-JAM-EFB PS 12 Plaintiff, 13 v. ORDER 14 LOS ANGELES POLICE DEPARTMENT, LOS ANGELES 15 DISTRICT ATTORNEY’S OFFICE, PENTECOSTAL ASSEMBLIES OF THE 16 WORLD, 17 Defendants. 18 19 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her 20 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 21 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 22 Determining that plaintiff may proceed in forma pauperis does not complete the required 23 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 24 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 25 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 26 below, plaintiff’s complaint must be dismissed for failure to state a claim. 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 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 10 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 11 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 Under this standard, the court must accept as true the allegations of the complaint in 13 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 14 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 15 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 16 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 17 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 18 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 19 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 20 Here, the complaint’s limited allegations are insufficient to state a claim. Plaintiff asserts 21 that she “recently acquired a large gathering of the opposite (sex) persuasion.” ECF No. 1 at 6. 22 She claims she has been videotaped, harassed, and followed, and that she has had to go into 23 hiding because she and her family are in grave danger. Id. She also alleges that she recently 24 learned that she is “under federal investigation and an indictment,” but she has yet to receive any 25 documents relating to criminal charges. Id. 26 The complaint does not identify any specific cause of action, nor does it identify the 27 specific statute or constitutional provision the defendants purportedly violated. Indeed, the 28 complaint is devoid of any allegations concerning the three named defendants: the Los Angeles 1 Police Department, the Los Angeles District Attorney’s Office, and the Pentecostal Assemblies of 2 the World. Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. See 3 Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (a complaint must give 4 fair notice and state the elements of the claim plainly and succinctly). 5 Plaintiff is granted leave to amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 6 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to 7 correct any deficiency in their complaints). Any amended complaint must allege a cognizable 8 legal theory against a proper defendant and sufficient facts in support of that cognizable legal 9 theory. Should plaintiff choose to file an amended complaint, the amended complaint shall 10 clearly set forth the allegations against each defendant and shall specify a basis for this court’s 11 subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in “numbered 12 paragraphs, each limited as far as practicable to a single set of circumstances,” as required by 13 Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line 14 numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and 15 130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and 16 against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must 17 plead clear facts that support each claim under each header. 18 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 19 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 20 complete in itself. This is because, as a general rule, an amended complaint supersedes the 21 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 22 plaintiff files an amended complaint, the original no longer serves any function in the case. 23 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 24 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 25 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 26 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 27 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 28 may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. wOAOe 2 LUV VEU CY VY EAINIT ER MVOC PO MOI er AY OT Mt 1 | UL Conclusion 2 Accordingly, it is hereby ORDERED that: 3 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 4 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 5 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 6 || complaint. The amended complaint must bear the docket number assigned to this case and must 7 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 8 || accordance with this order will result in a recommendation this action be dismissed. 9 | DATED: August 6, 2020. 0 tid, PDEA 11 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28