(PS) Iegorova v. Lowder ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIUDMYLA IEGOROVA, No. 2:19-cv-1358-MCE-EFB PS 12 Plaintiff, 13 v. ORDER 14 RENEE LOWDER, 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. 3. 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 The allegations in plaintiff’s complaint are limited. Liberally construed, plaintiff alleges 19 that she went to the “office DHA” and requested defendant Renee Lower file “hearing documents 20 for IHSS hours” and Cash Assistance Program for Immigrants benefits. ECF No. 1 at 2. 21 Defendant Lower, however, ignored plaintiff’s request, thereby committing “crime conspiracy 22 against [plaintiff’s] life, health, [and] private property” in violation of 18 U.S.C. § 241. 23 These allegations are insufficient to state a claim upon which relief may be granted. 24 Plaintiff only purports to assert a single claim under 18 U.S.C. § 241. That statute, however, is a 25 criminal statute that does not provide a private right of action. See Allen v. Gold Country Casino, 26 464 F.3d 1044, 1048 (9th Cir. 2006) (affirming the dismissal claims under 18 U.S.C. § 241 27 because it is a “criminal statute[] that do not give rise to civil liability”). 28 ///// 1 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff 2 is granted leave to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 3 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any 4 deficiency in their complaints). Any such complaint must allege a cognizable legal theory and 5 sufficient facts in support of that cognizable legal theory. Should plaintiff choose to file an 6 amended complaint, the amended complaint shall clearly set forth the allegations against 7 defendant and shall specify a basis for this court’s subject matter jurisdiction. It shall also plead 8 plaintiff’s claims in “numbered paragraphs, each limited as far as practicable to a single set of 9 circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in double- 10 spaced text on paper that bears line numbers in the left margin, as required by Eastern District of 11 California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings 12 to delineate each claim alleged and against which defendant or defendants the claim is alleged, as 13 required by Rule 10(b), and must plead clear facts that support each claim under each header. 14 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 15 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 16 complete in itself. This is because, as a general rule, an amended complaint supersedes the 17 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 18 plaintiff files an amended complaint, the original no longer serves any function in the case. 19 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 20 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 21 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 22 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 23 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 24 may result in a recommendation that this action be dismissed. See Local Rule 110. 25 Accordingly, IT IS ORDERED that: 26 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 3) is granted. 27 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 28 ///// 1 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 2 | complaint. The amended complaint must bear the docket number assigned to this case and must 3 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 4 || accordance with this order will result in a recommendation this action be dismissed. 5 | DATED: March 18, 2020. 6 tid, PDEA 7 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28