United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff Moody W. Tanksley, who proceeds in this action without counsel, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) Plaintiff's application in support of his request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. Accordingly, the court grants plaintiff's request to proceed in forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.
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). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke , 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona , 885 F.2d 639, 640 (9th Cir. 1989); Franklin , 745 F.2d at 1227.
To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions, " "labels and conclusions, " or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly , 550 U.S. at 570. "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." Iqbal , 129 S.Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus , 127 S.Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes , 416 U.S. 232, 236 (1974).
Pro se pleadings are liberally construed. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't. , 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson , 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin , 745 F.2d at 1230.
Here, plaintiff's handwritten complaint is in large part illegible, but plaintiff appears to allege that he was referred to Sutter General Hospital after he called 911 regarding various medical impairments. After arriving at Sutter General Hospital around midnight on June 1, 2014, plaintiff was apparently, after verbal warnings, physically removed (along with his wheelchair and personal effects) to the parking lot by Sutter General Hospital security officers and/or City of Sacramento police officers, because the officers stated that plaintiff was never medically registered at the Sutter General Hospital emergency room. Plaintiff states that he is bringing a claim under 42 U.S.C. § 1983 based on violation of his constitutional rights by Sutter General Hospital security officers and/or City of Sacramento police officers.
Plaintiff's complaint, to the extent that it is intelligible, does not remotely allege sufficient facts from which the court can draw a reasonable inference that a constitutional violation of some sort occurred. Indeed, plaintiff does not even identify a particular constitutional right that was purportedly violated. Based on the facts alleged at this juncture, it appears that plaintiff was removed from the hospital simply because he did not properly register as a patient and was considered to be loitering. It is also far from clear whether plaintiff is attempting to sue the individual officers involved, the entities employing them (Sutter General Hospital and/or the City of Sacramento), or all of the above.
In light of plaintiff's pro se status, and because it is at least conceivable that plaintiff could allege additional facts to potentially state a 42 U.S.C. § 1983 claim, the court finds it appropriate to grant plaintiff an opportunity to amend the complaint.
If plaintiff elects to file an amended complaint, it shall be captioned "First Amended Complaint"; shall clearly identify the persons or entities named as defendants; shall clearly identify the type of claim(s) brought; and shall be typed or written in legible handwriting.
Importantly, nothing in this order requires plaintiff to file a first amended complaint. If plaintiff concludes that he is unable to state a viable claim or no longer wishes to pursue this action, he may instead file a notice of voluntary dismissal of the action without prejudice.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to proceed in forma pauperis (ECF ...