The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS DISMISSING SECOND AMENDED COMPLAINT WITH PREJUDICE (Doc. 11)
On September 23, 2011, the Court screened Plaintiff's complaint in accordance with 28 U.S.C. § 1915(e)(2) and dismissed it with leave to amend. Now pending before the Court is Plaintiff's Second Amended Complaint filed on October 11, 2011 (Doc. 11.), which is now before the Court for screening.
For the following reasons, the Court recommends Plaintiff's Second Amended Complaint be DISMISSED WITH PREJUDICE.*fn1
When a plaintiff is proceeding in forma pauperis, the Court is required to review the complaint, and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the action or appeal is "frivolous, malicious or fails to state a claim on which relief may be granted; or ... seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.1915(e)(2). A claim is frivolous "when the facts alleged arise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32--33 (1992).
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed.R.Civ.P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards" than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 521--21 (1972). However, a complaint must give fair notice and state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984).
"[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325, (1989); Franklin v. Murphy, 745 F.2d 1221, 1227--28 (9th Cir. 1984). Accordingly, the court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory. Neitzke, 490 U.S. at 327.
III. Plaintiff's Allegations
Plaintiff alleges as follows. In January of 2007, Plaintiff opened a bank account with Bank of America. (Doc. 11 at 4.) Thereafter, Bank of America "allowed someone unknown to
[P]laintiff to debit" money from Plaintiff's account. (Id.) This resulted in $208 in overdraft fees due to Plaintiff having insufficient funds in his account. (Id.) This occurred again on two occasions, on January 8, 2008 and July 15, 2009, which led to overdraft fees of $218 and $70, respectively. (Id.) Plaintiff later closed the account. (Id.)
Plaintiff reopened an account with Bank of America on August 6, 2010. (Doc. 11 at 4.) When he opened the new account, Plaintiff "made it clear" to his personal banker that he did not want overdraft protection and that the bank should reject any debit whenever his account had insufficient funds. (Id.) Nevertheless, despite his explicit request, on July 11, 2011, Plaintiff incurred a $35 overdraft fee for exceeding his account balance by $3.58. (Id. at 4-5.) Plaintiff complained to the claims department and the bank manager, but was told that nothing could be done. (Id. at 5.)
On August 20, 2011, Defendant sent Plaintiff a notice which indicated that he had unpaid balance of $118.53 and stated that if the situation was not resolved, the bank could be "forced" to close Plaintiff's account. (Doc. 11 at 13.) According to a subsequent notice provided by Defendant, Plaintiff's account reflected an overdue balance of $128.48, which if left unresolved would result in an additional overdrawn balance charge of $35. (Doc. 11 at 14.) Ultimately, Defendant forwarded Plaintiff's account to a collection agent, and on April 6, 2011, the agent sent Plaintiff a notice reflecting a balance due of $75.50.
Based on the foregoing allegations, Plaintiff claims that Bank of America violated his constitutional rights and raises state law claims of conspiracy to commit conversion and defamation. In terms of ...