(PS) Van den Heuvel v. Bowman ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JEAN MARC VAN DEN HEUVEL, No. 2:19-cv-806-JAM-EFB PS 11 Plaintiff, 12 v. ORDER 13 ROBERT C. BOWMAN, LAURA RIECH, STEVEN RAWSON, 14 Defendants. 15 16 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 His 17 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 18 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 19 Determining that plaintiff may proceed in forma pauperis does not complete the required 20 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines that 21 the allegation of poverty is untrue, or that the action is frivolous or malicious, fails to state a claim 22 on which relief may be granted, or seeks monetary relief against an immune defendant. As 23 discussed below, plaintiff’s complaint must be dismissed for failure to state a claim. 24 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 25 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 26 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, 554, 562-563 (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. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. 18 Gibson, 355 U.S. 41 (1957)). 19 Plaintiff brings this action against defendants Robert Bowman, Laura Riech, and Steven 20 Rawson. ECF No. 1. But these defendants appear to have little, if any, connection to the 21 allegations of the complaint. The complaint describes Bowman as an attorney that processed an 22 unlawful detainer action, Riech as an attorning that performed “property acquisitions,” and 23 Rawson as the “[l]andlord of property in question.” Id. at 2. Although these descriptions suggest 24 this action involves a landlord-tenant dispute, plaintiff’s allegations concern state court criminal 25 proceedings and conditions of the El Dorado County Jail. Id. at 4-5. Plaintiff generally claims 26 that he was subjected to inhumane conditions at the El Dorado County jail, but he does not 27 specifically describe any substandard conditions. Id. at 4. He also claims that a state court judge 28 ///// 1 permitted a deputy to slam inmates on the floor during court proceedings. He further alleges that 2 he was wrongly arrested after an incident involving an unloaded firearm. Id. at 5. 3 Significantly, the complaint contains no allegations regarding defendants Bowman and 4 Riech and only one allegation concerning defendant Rawson, which is largely incoherent. With 5 respect to Rawson, plaintiff alleges that clothing containing DNA evidence was stored at a 6 Placerville Self Storage facility for purposes of “sustainings [sic] of the rental agreements of 7 Steven Rawson.” Id. But the complaint does not identify any specific cause of action, nor does it 8 identify the specific statute defendants purportedly violated. And it is not clear from plaintiff’s 9 allegations what claim he is attempting to assert. 10 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. See 11 Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (a complaint must give 12 fair notice and state the elements of the claim plainly and succinctly). Plaintiff will be granted 13 leave to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 14 banc) (district courts must afford pro se litigants an opportunity to amend to correct any 15 deficiency in their complaints). Any amended complaint must allege a cognizable legal theory 16 and state sufficient facts in support of that cognizable legal theory. Should plaintiff choose to file 17 an amended complaint, it shall clearly set forth the allegations that support each claim for relief. 18 It shall also set forth plaintiff’s claims in “numbered paragraphs, each limited as far as practicable 19 to a single set of circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall 20 be in double-spaced text on paper that bears line numbers in the left margin, as required by 21 Eastern District of California Local Rules 130(b) and 130(c). Any amended complaint shall also 22 use clear headings to delineate each claim alleged and against which defendant or defendants the 23 claim is alleged, as required by Rule 10(b), and must plead clear facts that support each claim 24 under each header. 25 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 26 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 27 complete in itself. This is because, as a general rule, an amended complaint supersedes the 28 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once wOAOe 2 LUV VOU EAINIT ER MVOC Sr POR MOI er PAY OT Mt 1 | plaintiff files an amended complaint, the original no longer serves any function in the case. 2 | Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 3 || alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 4 | 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 5 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 6 || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 7 || may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 8 Accordingly, IT IS ORDERED that: 9 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 10 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 11 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 12 | complaint. The amended complaint must bear the docket number assigned to this case and must 13 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 14 | accordance with this order will result in a recommendation this action be dismissed. 15 | DATED: August 6, 2020. 16 Doolin Sx Lom 17 EDMUND F. BRENNAN ig UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28