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Edward R. Haynes v. Jody Schwenkel

May 15, 2012

EDWARD R. HAYNES,
PLAINTIFF,
v.
JODY SCHWENKEL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATION DISMISSING PLAINTIFF‟S FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

Edward Haynes ("Plaintiff") seeks to proceed pro se with an action for a violation of civil rights and conspiracy against defendants Jody Schwenkel, Jose Ortiz, Soledad Giron, Marisol O‟Neil, Annette Dodson, James Ledford, Kathy Ware, Patty Dudley, Russ Miller, and Diane Hernandez, who are employees of J.P. Morgan Chase and Company Bank (collectively "Defendants"). Pursuant to the Court‟s order, Plaintiff filed a First Amended Complaint on May 10, 2012. (Doc. 3). For the following reasons, the Court recommends Plaintiff‟s First Amended Complaint be DISMISSED WITHOUT LEAVE TO AMEND.

I. Pleading Standards

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 2 stringent standards" than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972). 3

A complaint must give fair notice and state the elements of the plaintiff‟s claim in a plain and 4 succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The 5 purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds 6 upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The 7 Supreme Court noted, 8 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, [A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant‟s liability, it "stops short of the line between possibility and plausibility of "entitlement to relief.‟ Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id.

The Court has a duty to dismiss a case at any time it determines an action fails to state a claim, "notwithstanding any filing fee that may have been paid." 28 U.S.C. § 1915e(2). Accordingly, a court "may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim." See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1357 at 593 (1963). However, leave to amend a complaint may be granted to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 2 1122, 1127-28 (9th Cir. 2000) (en banc). 3

II. Plaintiff's Allegations 4

Plaintiff alleges he is an African-American senior citizen. (Doc. 3 at 10). He opened an 5 account with J.P. Morgan Chase and Company Bank ("Chase") on or about October 20, 2009. Id. at 6. 6

According to Plaintiff, a Chase representative "asked Plaintiff if he had any income payments he 7 wished to have as a direct deposit, to which Plaintiff replied in the negative." Id. Plaintiff asserts he 8 noted a discrepancy with his credit card in May 2010, at which time Plaintiff spoke with Marisol 9

O‟Neil and informed her that Plaintiff "had a specific arrangement with Bank of America wherein funds were moved from his savings account monthly to his checking account . . . and that Plaintiff did not wish to alter this arrangement." Id. at 6-7.

On July 13, 2010, Plaintiff discovered that his direct-deposit funds from the Veteran‟s Administration ("VA") "had been diverted from his Bank of America savings account to his Chase account." (Doc. 3 at 7). Plaintiff contends he went to Chase and met with Ms. O‟Neil, inquiring "what document, methodology, or computer data had been utilized by Chase which would have permitted Chase to divert Plaintiff‟s direct-deposit funds." Id. He alleges Ms. O‟Neil reported "she found nothing in Chase‟s computer records which could answer his question." Id.

Plaintiff met with Ms. Lines, a Bank of America representative, on July 16, 2010, "to see if she could determine how his funds had been diverted from Bank of America to Chase." (Doc. 3 at 7). He contends Ms. Lines informed Plaintiff "she did not know how the transfer could have been made without Plaintiff‟s specific approval." Id. With Ms. Lines assistance, Plaintiff completed "an application to re-divert the VA funds to Bank of America." Id.

Plaintiff asserts he traveled to the VA Office on August 5, 2010 "after he discovered the Chase diversion was still not corrected." (Doc. 3 at 7). There, Plaintiff confirmed his July and August 2010 payments had been deposited into his new Chase account, and the VA "assisted Plaintiff in rediverting the funds from Chase back to Bank of America." Id.

According to Plaintiff, he attempted to meet with defendant Ledford, the branch manager at the Ming Avenue Chase Bank, on August 16, 2010 "to determine how the funds had been diverted without Plaintiff‟s authorization." (Doc. 3 at 7-8). However, Plaintiff met with Ms. Dodson, who 2 Plaintiff said "seemed intent on placing blame for the funds diversion upon Defendant O‟Neil." Id. at 3 8. Plaintiff questioned "how any Chase employee discovered the fact of Plaintiff‟s VA direct-deposit 4 funds, inasmuch as Plaintiff had not divulged this information." Id. 5

On August 17, 2010, Plaintiff alleges he "sustained a facial and head injury as the result of a 6 fall." (Doc. 3 at 8). Plaintiff asserts, travelled to the VA in Fresno for medical treatment, and 7 "[d]uring the medical interview, it was determined that Plaintiff may well have fallen and injured 8 himself as a direct result of the emotional stress Plaintiff was undergoing while trying to straighten out 9 the Chase diversion of his direct-deposit funds."*fn1 Id.

Plaintiff alleges Mr. Cochran*fn2 attempted to contact Kathy Ware, the supervisor of all Bakersfield Chase Bank branches, on his behalf on August 20, 2010. (Doc. 3 at 8). Patty Dudley, Ms. Ware‟s administrative assistant, informed him that Ms. Ware was unavailable. Id. According to Plaintiff, James Ledford sent documents regarding Plaintiffs‟ complaint to the Chase Executive Office for review by the legal department. Id. Plaintiff attempted to contact Ms. Ware and Mr. Ledford on August 31, 2010, but both were unavailable. Id. at 9. Plaintiff asserts he complained "about the lack of availability of any Chase . . . supervisors," and was informed that Mr. Miller "would "immediately follow up‟ on the forwarding of the [his] documents to the Executive Office." Id.

Plaintiff asserts he was contacted by Diane Hernandez from Chase Bank‟s Executive Office on September 14, 2010, but "Chase would only give ...


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