(PS) Atsbaha v. Barr ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MULUGETA ATSBAHA, No. 2:19-cv-1462 KJM DB PS 12 Plaintiff, 13 v. ORDER 14 WILLIAM BARR, ATTORNEY GENERAL, 15 16 Defendant. 17 18 Plaintiff Mulugeta Atsbaha is proceeding in this action pro se. This matter was referred to 19 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 20 before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 21 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about the denial of “Equal 22 Employment Opportunity.” (Compl. (ECF No. 1) at 5.) 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 26 below, plaintiff’s complaint will be dismissed with leave to amend. 27 //// 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 7 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 8 judgment for the relief the pleader seeks. 9 Fed. R. Civ. P. 8(a). 10 II. Plaintiff’s Complaint 11 Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing 12 that plaintiff is entitled to relief. In this regard, the complaint simply alleges that plaintiff “was 13 denied Equal Employment Opportunity under the law . . . 9 times” and was the “only person . . . 14 laid off in the Sacramento FBI.” (Compl. (ECF No. 1) at 5.) No facts are alleged or causes of 15 action asserted. 16 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 17 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 18 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 19 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 20 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 21 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 22 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 23 557). A plaintiff must allege with at least some degree of particularity overt acts which the 24 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 25 Attached to plaintiff’s complaint is a U.S. Equal Employment Opportunity Commission 26 Decision. (ECF No. 1 at 8.) That decision notes that plaintiff alleged claims of discrimination in 27 violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act 28 (“ADEA”). (Id.) 1 “To establish a prima facie case under Title VII, a plaintiff must offer proof: (1) that the 2 plaintiff belongs to a class of persons protected by Title VII; (2) that the plaintiff performed his or 3 her job satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that the 4 plaintiff’s employer treated the plaintiff differently than a similarly situated employee who does 5 not belong to the same protected class as the plaintiff.” Cornwell v. Electra Cent. Credit Union, 6 439 F.3d 1018, 1028 (9th Cir. 2006). “In a failure-to-promote case, a plaintiff may establish a 7 prima facie case of discrimination in violation of the ADEA by producing evidence that he or she 8 was (1) at least forty years old, (2) qualified for the position for which an application was 9 submitted, (3) denied the position, and (4) the promotion was given to a substantially younger 10 person.” Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012). 11 Here, however, the complaint does not attempt to explain what claim plaintiff is asserting 12 against the defendant or what facts support that claim. Accordingly, plaintiff’s complaint will be 13 dismissed. 14 III. Leave to Amend 15 The undersigned has carefully considered whether plaintiff may amend the complaint to 16 state a claim upon which relief can be granted. “Valid reasons for denying leave to amend 17 include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. 18 Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n 19 v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to 20 amend shall be freely given, the court does not have to allow futile amendments). 21 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 22 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 23 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 24 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 25 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 26 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 27 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 28 1988)). 1 Here, given the vague and conclusory nature of the complaint’s allegations, the 2 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. 3 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an 4 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended 5 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint 6 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 7 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While 8 legal conclusions can provide the complaint’s framework, they must be supported by factual 9 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from 10 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 11 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 12 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 13 in itself without reference to prior pleadings. The amended complaint will supersede the original 14 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 15 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 16 and identified in the body of the complaint, and each claim and the involvement of each 17 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 18 must also include concise but complete factual allegations describing the conduct and events 19 which underlie plaintiff’s claims. 20 CONCLUSION 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. The complaint filed July 31, 2019 (ECF No. 1) is dismissed with leave to 23 amend.1 24 2. Within twenty-eight days from the date of this order, an amended complaint shall be 25 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 26 27 1 Plaintiff need not file another application to proceed in forma pauperis at this time unless 28 plaintiff’s financial condition has improved since the last such application was submitted. 1 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number 2 assigned to this action and must be titled “Amended Complaint.” 3 3. Failure to comply with this order in a timely manner may result in a recommendation 4 that this action be dismissed. 5 DATED: November 14, 2019 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.