(PS) Gaffney v. Barrow ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYSHAWN C. GAFFNEY, No. 2:22–cv–02251-TLN–CKD PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND GRANTING LEAVE TO AMEND 13 v. 14 CORY BARROW, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 Legal Standards 2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 3 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 4 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 5 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 6 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 7 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 8 Rule 8(a) requires that a pleading be “(1) a short and plain statement of the grounds for the 9 court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader is 10 entitled to relief; and (3) a demand for the relief sought, which may include relief in the 11 alternative or different types of relief.” Each allegation must be simple, concise, and direct. Rule 12 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other grounds) 13 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 14 litigation on the merits of a claim.”). 15 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 16 relief can be granted.” Rule 12(b)(6). A complaint fails to state a claim if it either lacks a 17 cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix, 18 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a 19 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 20 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 21 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 22 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 23 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a 24 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 25 pleads factual content that allows the court to draw the reasonable inference that the defendant is 26 liable for the misconduct alleged.” Id. 27 When considering whether a complaint states a claim upon which relief can be granted, 28 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 1 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 2 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 3 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 4 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 5 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 6 Analysis 7 Here, plaintiff did not fill out the portions of the complaint form asking for a description 8 of his claims. Instead of attempting to summarize his claims, plaintiff merely wrote “see 9 attachment.”2 (ECF No. 1 at 3-6.) In attached documents, plaintiff makes brief and conclusory 10 statements that defendant police officers engaged in federal civil rights violations, malicious 11 prosecution, false arrest, and racial profiling, but he fails to include specific facts supporting these 12 statements. (Id. at 10, 16.) Plaintiff also attaches documents indicating that, in December 2020, 13 he was arrested and charged with misdemeanor battery in a domestic violence incident. (Id. at 14 20-50.) By simply attaching documents related to his arrest and prosecution, and failing to allege 15 facts suggesting his federal civil rights were violated, plaintiff has not met the federal pleading 16 standards under Rules 8 and 12(b)(6). For these reasons, the complaint is subject to dismissal. 17 Nevertheless, in light of plaintiff’s pro se status, and because it is at least conceivable that 18 plaintiff could allege facts to state a claim under 42 U.S.C. § 1983, the court finds it appropriate 19 to grant plaintiff an opportunity to amend the complaint. 20 STANDARDS FOR AMENDMENT 21 If plaintiff elects to file an amended complaint, this new pleading shall: 22 i. be captioned “First Amended Complaint”; 23 ii. be limited to 20 pages, with text utilizing a font size of 12 Times New Roman or equivalent and double spacing (pages exceeding the 20-page limit will be summarily 24 stricken and will not be considered part of plaintiff’s operative pleading); iii. use numbered paragraphs; 25 iv. set forth his various claims in separate sections and clearly identify which defendants are allegedly at fault for each claim (e.g., Claim I against defendants X, Y, and Z, 26 27 2 Plaintiff submitted a complaint form pre-marked for filing in the Northern District of California. As the incidents giving rise to the complaint occurred in Butte County, however, the court will 28 consider the form properly filed in this district for screening purposes. 1 Claim II against defendants R and S, etc.); v. under each section, list the factual allegations supporting that particular claim (for 2 brevity, plaintiff may refer to specific prior paragraphs [i.e. “See ¶¶ 25, 34, and 42”], but in no case shall plaintiff “incorporate all preceding paragraphs” for any claims); 3 vi. include a general background facts section to orient the reader only as necessary; 4 vii. include his statements for jurisdiction, venue, and relief sought as is necessary; viii. omit exhibits, documents, photos, or other such “evidence” of his claims (except for 5 any contracts on which he bases any breach of contract claim); ix. refrain from alleging redundant, immaterial, impertinent, or scandalous matters; and 6 x. address any other pleading deficiencies outlined above. 7 This amended complaint shall be filed within 28 days of this order. 8 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 9 to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended 10 complaint be complete in itself without reference to any prior pleading. As a general rule, an 11 amended complaint supersedes the original complaint, and once the first amended complaint is 12 filed, the original complaint no longer serves any function in the case. 13 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 14 plaintiff determines that he is unable to amend his complaint in compliance with the court’s order 15 at this juncture, he may alternatively file a notice of voluntary dismissal of his claims without 16 prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this order. 17 ORDER 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s motion to proceed in forma pauperis is GRANTED; 20 2. Plaintiff is granted 28 days from the date of this order, plaintiff shall file either (a) an 21 amended complaint in accordance with this order, or (b) a notice of voluntary 22 dismissal of the action without prejudice; and 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 1 3. Failure to file either an amended complaint or a notice of voluntary dismissal by the 2 required deadline may result in the imposition of sanctions, including potential 3 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 4 41(b). 5 | Dated: April 7, 2023 Card ft 4 LA g. ae 6 CAROLYN K DELANEY? 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 2/gafiney225 L.screening.grant ifp + leave to amend 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28