(PS) McElroy v. United States ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTH M. McELROY, No. 2:23-cv-0114 TLN DB PS 12 Plaintiff, 13 v. ORDER 14 UNITED STATES OF AMERICA, 15 Defendant. 16 17 Plaintiff Martha McElroy is proceeding in this action pro se. This matter was referred to 18 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the Court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 20 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about injuries caused as a result 21 of being “made a ward of the Sacramento County court[.]” (Compl. (ECF No. 1) at 3.) 22 The Court is required to screen complaints brought by parties proceeding in forma 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 25 below, plaintiff’s complaint will be dismissed with leave to amend. 26 I. Plaintiff’s Application to Proceed In Forma Pauperis 27 Plaintiff’s in forma pauperis application makes the financial showing required by 28 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 1 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 2 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 3 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 4 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 5 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 6 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 7 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 8 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 9 District Court to examine any application for leave to proceed in forma pauperis to determine 10 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 11 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 12 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 13 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 14 state a claim on which relief may be granted, or seeks monetary relief against an immune 15 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 16 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 17 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 18 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 19 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 20 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 21 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 22 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 23 true the material allegations in the complaint and construes the allegations in the light most 24 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 25 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 26 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 27 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 28 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 1 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 2 The minimum requirements for a civil complaint in federal court are as follows: 3 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 4 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 5 judgment for the relief the pleader seeks. 6 Fed. R. Civ. P. 8(a). 7 II. Plaintiff’s Complaint 8 Plaintiff’s complaint fails to contain a short and plain statement of a claim showing that 9 plaintiff is entitled to relief. In this regard, the complaint alleges that employees acting on behalf 10 of defendant United States of America engaged in “general negligence” by placing plaintiff “in 11 emergency foster case on the day of birth.” (Compl. (ECF No. 1) at 3.) Defendant failed to 12 locate plaintiff’s natural father. (Id.) Thereafter, plaintiff suffered a long period of abuse. (Id.) 13 An action based on the negligent or wrongful conduct of a government employee must be 14 brought against the United States as a claim pursuant to the Federal Tort Claims Act, (“FTCA”). 15 28 U.S.C. §§ 2671-2680; see also Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 16 1998) (“the United States is the only proper party defendant in an FTCA action”). The FTCA 17 “vests the federal district courts with exclusive jurisdiction over suits arising from the negligence 18 of Government employees.” Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992). 19 However, the FTCA “further provides that before an individual can file an action against 20 the United States in district court, she must seek an administrative resolution of her claim.” Id. 21 Specifically, the FTCA provides that: 22 An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal 23 injury or death caused by the negligent or wrongful omission of any employee of the Government while acting within the scope of his 24 office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have 25 been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition 26 of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim 27 for purposes of this section. 28 1 28 U.S.C. § 2675(a). “The requirement of an administrative claim is jurisdictional” and “must be 2 strictly adhered to.” Valadez–Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (quotation 3 omitted). “We are not allowed to proceed in the absence of fulfillment of the conditions merely 4 because dismissal would visit a harsh result upon the plaintiff.” Vacek v. U.S. Postal Service, 5 447 F.3d 1248, 1250 (9th Cir. 2006). “When a plaintiff fails to exhaust administrative remedies 6 against the United States, as required by the FTCA, the proper route is dismissal” without 7 prejudice. Wilson v. Horton’s Towing, 906 F.3d 773, 783 (9th Cir. 2018). 8 Here, the complaint does not establish that plaintiff has complied with the exhaustion 9 requirement of the FTCA by presenting the claim to the appropriate Federal agency. To the 10 contrary, the complaint alleges that plaintiff complied with the FTCA by a “mailing . . . to the 11 State of California[.]” (Compl. (ECF No. 1) at 2.) Moreover, although the complaint repeatedly 12 references the alleged wrongful conduct of the defendant, no specific allegations against anyone 13 associated with the United States are asserted. Instead, the complaint alleges that the “officials 14 involved in Plaintiff’s case” were a state court judge, an administrator employed by a state 15 hospital, and officials with the California Department of Social Welfare. (Id. at 5.) 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 II. Leave to Amend 26 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 27 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 28 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 1 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 2 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 3 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 4 court does not have to allow futile amendments). 5 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 6 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 7 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 8 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 9 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 10 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 11 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 12 1988)). 13 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend 14 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted 15 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file 16 an amended complaint “the tenet that a court must accept as true all of the allegations contained 17 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause 18 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. 19 “While legal conclusions can provide the complaint’s framework, they must be supported by 20 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line 21 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 22 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 23 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 24 in itself without reference to prior pleadings. The amended complaint will supersede the original 25 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 26 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 27 and identified in the body of the complaint, and each claim and the involvement of each 28 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 1 must also include concise but complete factual allegations describing the conduct and events 2 which underlie plaintiff’s claims. 3 CONCLUSION 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The complaint filed January 19, 2023 (ECF No. 1) is dismissed with leave to 6 amend. 7 2. Within twenty-eight days from the date of this order, an amended complaint shall be 8 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 9 Procedure and the Local Rules of Practice.1 The amended complaint must bear the case number 10 assigned to this action and must be titled “Amended Complaint.” 11 3. Failure to comply with this order in a timely manner may result in a recommendation 12 that this action be dismissed.2 13 DATED: April 25, 2023 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 1 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 26 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure. 27 2 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.