The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DISMISSING PLAINTIFF‟S FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (Doc. 5)
Kareem Muhammad ("Plaintiff") seeks to proceed pro se with an action for a violation of civil rights against defendant Chad Garrett, an officer of the Bakersfield Police Department, in his individual capacity ("Defendant"). Plaintiff initiated this action by filing his complaint (Doc. 1) and a motion to proceed in forma pauperis (Doc. 3) on July 23, 2012. For the following reasons, Plaintiff‟s complaint is DISMISSED WITH LEAVE TO AMEND.
When a plaintiff proceeds 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). The Court must screen the First Amended
Complaint because an amended 2 complaint supersedes previous
pleadings. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.
3 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 4
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A 6 pleading stating a claim for relief must include a statement affirming the court‟s jurisdiction, "a short 7 and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the 8 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 by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).
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). The purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,
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 2 assume their truth and determine whether the facts would make the plaintiff entitled to relief; 3 conclusions in the pleading are not entitled to the same assumption of truth. Id. 4
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 6 "may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a 7 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 9 to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
III. Plaintiff's Allegations
Plaintiff asserts that he was at the Tower Motel on February 26, 2012, when he "was interrupted by a racial protest of deadly threats." (Doc. 5 at 2). Because Plaintiff had a "fear of being drugged," he left the motel and went to the nearest hospital, San Joaquin Hospital. Id. Plaintiff reports that he left San Joaquin Hospital to go to a 24-hour convenience store, and while was walking he was passed by a police cruiser. Id. According to Plaintiff, Officer Garrett "suddenly shout[ed]" at him, which caused Plaintiff to stumble and fall "[o]ut of shock and surprise." Id.
Plaintiff contends he was "told to stay on the ground" by the officer, though he "posed no threat," and did not attempt to resist arrest. (Doc. 5 at 2-3). Plaintiff alleges:
Defendant grabs plaintiff‟s right arm in a casual manner, before deciding to commit an unlawful act. Defendant decides to no longer engage in the performance of his duties, when he decides to forget the handcuffs and violently and ...