(PS) Van den Heuvel v. Reich ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HEUVEL, No. 2:23-cv-1213 KJM DB PS 12 Plaintiff, 13 v. ORDER 14 LAURA REICH, 15 Defendant. 16 17 Plaintiff Jean Marc Van den Heuvel is proceeding in this action pro se. This matter was 18 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 19 Pending before the court are plaintiff’s complaint and motion to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about a seizure of 21 property during an eviction. (Compl. (ECF No. 1) at 6.) 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 //// 1 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 2 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 3 The minimum requirements for a civil complaint in federal court are as follows: 4 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 5 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 6 judgment for the relief the pleader seeks. 7 Fed. R. Civ. P. 8(a). 8 II. Plaintiff’s Complaint 9 Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing 10 that plaintiff is entitled to relief. In this regard, the allegations found in the complaint are difficult 11 to decipher. The complaint names as a defendant attorney Laura Reich. (Compl. (ECF No. 1) at 12 7.) The complaint makes vague and conclusory allegations related to “‘thefts’ by intent 13 designations into Public Storage facility with justified extreme cautions and manipulations of 14 ‘wordings’ that caused massive losses of valuable property[.]” (Id. at 4.) The “evictions” were 15 evidently the result of court orders issued by “judge Warren C. ‘Nazi’ Strancerner[.]” (Id.) The 16 complaint, however, fails to identify a claim or the alleged wrongful actions of defendant Reich. 17 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 18 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 19 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 20 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 21 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 22 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 23 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 24 557). A plaintiff must allege with at least some degree of particularity overt acts which the 25 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 26 III. Leave to Amend 27 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 28 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 1 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 2 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 3 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 4 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 5 court does not have to allow futile amendments). 6 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 7 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 8 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 9 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 10 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 11 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 12 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 13 1988)). 14 Here, given the vague and conclusory nature of the complaint’s allegations, the 15 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. 16 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an 17 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended 18 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint 19 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 20 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While 21 legal conclusions can provide the complaint’s framework, they must be supported by factual 22 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from 23 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 24 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 25 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 26 in itself without reference to prior pleadings. The amended complaint will supersede the original 27 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 28 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 1 and identified in the body of the complaint, and each claim and the involvement of each 2 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 3 must also include concise but complete factual allegations describing the conduct and events 4 which underlie plaintiff’s claims. 5 CONCLUSION 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The complaint filed June 22, 2023 (ECF No. 1) is dismissed with leave to 8 amend.1 9 2. Within twenty-eight days from the date of this order, an amended complaint shall be 10 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 11 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number 12 assigned to this action and must be titled “Amended Complaint.” 13 3. Failure to comply with this order in a timely manner may result in a recommendation 14 that this action be dismissed. 15 DATED: September 25, 2023 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 1 Plaintiff need not file another application to proceed in forma pauperis at this time unless plaintiff’s financial condition has improved since the last such application was submitted. 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.