(PS) Tautau v. IHSS - Kern County ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TWYLLA TAUTAU, No. 2:19-cv-600-KJM-EFB PS 11 Plaintiff, 12 v. ORDER 13 KERN COUNTY I.H.S.S., RIVERSIDE COUNTY I.H.S.S., CALIFORNIA 14 DEPARTMENT OF CORRECTIONS, BAKERSFIELD POLICE 15 DEPARTMENT, KERN COUNTY SHERIFF’S DEPARTMENT, F.B.I., 16 Defendants. 17 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 fails to state a claim and must therefore be dismissed. 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 Plaintiff brings this action against several government agencies. ECF No. 1. The 21 complaint alleges that defendants have “videotap[ed] via live feed, harassed, followed, tortured to 22 an extent, [and] injured” plaintiff in relation to a “federal investigation/indictment.” Id. at 2. She 23 claims that she has requested copies of warrants and indictments, but defendants have refused to 24 produce them. Id. She further claims she has “been threatened, suffered tentative bodily injury, 25 [and] an attempt on [her] life has already occurred.” Id. Plaintiff also claims that her civil rights 26 have been infringed and her character defamed. Id. at 7, 8. 27 ///// 28 ///// 1 These allegations are insufficient to state a claim upon which relief may be granted. 2 Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice 3 and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 4 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity 5 overt acts which defendants engaged in that support plaintiff’s claim. Id. The allegations must be 6 short and plain, simple and direct and describe the relief plaintiff seeks. Fed. R. Civ. P. 8(a); 7 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307 8 F.3d 1119, 1125 (9th Cir. 2002). 9 Plaintiff claims in conclusory fashion that her civil rights were violated, but she does not 10 identify the specific statutory or constitutional provision defendants purportedly violated and it is 11 not clear what claim she is attempting to assert. Further, plaintiff does not provide any factual 12 allegations in support of her contention that her character was defamed. Accordingly, plaintiff’s 13 complaint must be dismissed for failure to state a claim. See Jones v. Community Redev. Agency, 14 733 F.2d 646, 649 (9th Cir. 1984) (a complaint must give fair notice and state the elements of the 15 claim plainly and succinctly). 16 Plaintiff is granted leave to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 17 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to 18 amend to correct any deficiency in their complaints). Any amended complaint must allege a 19 cognizable legal theory against a proper defendant and sufficient facts in support of that 20 cognizable legal theory. Should plaintiff choose to file an amended complaint, the amended 21 complaint shall clearly set forth the allegations against each defendant and shall specify a basis 22 for this court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims 23 in “numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as 24 required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper 25 that bears line numbers in the left margin, as required by Eastern District of California Local 26 Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each 27 claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 28 10(b), and must plead clear facts that support each claim under each header. wOAOe 2 LDV ING I MVOC DP MOI ee AY OT Mt 1 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 2 | make an amended complaint complete. Local Rule 220 requires that an amended complaint be 3 || complete in itself. This is because, as a general rule, an amended complaint supersedes the 4 | original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 5 || plaintiff files an amended complaint, the original no longer serves any function in the case. 6 | Therefore, “‘a plaintiff waives all causes of action alleged in the original complaint which are not 7 | alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 8 | 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 9 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 10 || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 11 || may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 12 | Il. Conclusion 13 Accordingly, it is hereby ORDERED that: 14 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 15 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 16 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 17 || complaint. The amended complaint must bear the docket number assigned to this case and must 18 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 19 || accordance with this order will result in a recommendation this action be dismissed. 20 || DATED: August 6, 2020. 21 tid, PDEA 0 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28