(PS) Miner v. Reid ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 POCAHONTAS, No. 2:19-cv-1575-TLN-EFB PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PERRI ARLETTE REID, 15 Defendant. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 22 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 23 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 24 below, plaintiff’s complaint must be dismissed for failure to state a claim. 25 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 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.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 18 Plaintiff’s one sentence complaint merely alleges that she is suing defendant Perri Arlette 19 Reid “for taking our idea to start an all womens [sic] group of three named TLC & taking them to 20 stardom.” ECF No. 1. These allegations are too vague and conclusory to state a claim upon 21 which relief may be granted. Although the Federal Rules adopt a flexible pleading policy, a 22 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 23 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at 24 least some degree of particularity overt acts which defendants engaged in that support plaintiff’s 25 claim. Id. The allegations must be short and plain, simple and direct and describe the relief 26 plaintiff seeks. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); 27 Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). 28 ///// 1 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim.2 Plaintiff 2 will be granted leave to file an amended complaint, if she can allege a cognizable legal theory 3 against a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. 4 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se 5 litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff 6 choose to file an amended complaint, the amended complaint shall clearly set forth the allegations 7 against each defendant and shall specify a basis for this court’s subject matter jurisdiction. Any 8 amended complaint shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as 9 practicable to a single set of circumstances,” as required by Federal Rule of Civil Procedure 10 10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as 11 required by Eastern District of California Local Rules 130(b) and 130(c). Any amended 12 complaint shall also use clear headings to delineate each claim alleged and against which 13 defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts 14 that support each claim under each header. 15 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 16 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 17 complete in itself. This is because, as a general rule, an amended complaint supersedes the 18 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 19 plaintiff files an amended complaint, the original no longer serves any function in the case. 20 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 21 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 22 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 23 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 24 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 25 may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 26 27 2 Plaintiff also filed a motion for summary judgment and a separate motion for entry of judgment in her favor. ECF Nos. 3 & 4. Because her complaint must be dismissed for failure to 28 state a claim, it is recommended those motions be denied. 1 Accordingly, it is hereby ORDERED that: 2 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 3 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 4 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 5 || complaint. The amended complaint must bear the docket number assigned to this case and must 6 || be labeled “Second Amended Complaint.” Failure to timely file an amended complaint in 7 || accordance with this order will result in a recommendation this action be dismissed. 8 Further, it is RECOMMENDED that plaintiff's motions for summary judgment (ECF No. 9 | 3) and for entry of judgment (ECF No. 4) be denied. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 15 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 16 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | DATED: February 18, 2020. 18 tid. HDeMA 19 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28