United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Plaintiffs are proceeding in this action pro se. Plaintiff Murphy has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff Murphy has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, her request to proceed in forma pauperis will be granted. Plaintiff Smith has neither submitted an application to proceed in forma pauperis, nor has he paid the filing fee. Nevertheless, the amended complaint will be screened.
I. Screening of the Complaint
The determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines 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.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more... than... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (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 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.
This action was commenced in the Northern District of California on January 28, 2015, and transferred to this court on April 1, 2015. Before this court had an opportunity to screen the complaint, plaintiffs filed an amended complaint.
Plaintiffs are informed that the court cannot refer to a prior pleading in order to make plaintiffs' amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. With these principles in mind, the amended complaint has been screened.
The amended complaint contains claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692d ("FDCPA"), Cal. Bus. & Prof. Code § 17200 (for unfair business practices), 18 U.S.C. § 1028(A)(5) (forgery), and § 641 (grand larceny). The amended complaint is difficult to decipher, however, plaintiffs assert that defendants have harassed, intimidated and threatened them with the threatened foreclosure of their property located at 929 Bess Place, Stockton, California, causing plaintiff Murphy "undue physical and mental strain." (ECF No. 9 at 2.) Plaintiffs refer to attached exhibits; however, the amended complaint contains no exhibits.
It appears from court documents that the foreclosure of the real property at issue has already taken place. A trustee's sale appears to be complete and the purchasers intend to take possession of the property. See Mot. for Prel. Inj., ECF No. 10 at 21-21, 27-28. The motion for injunctive relief was denied by order of April 9, 2015. (ECF No. 15.) Plaintiffs seek damages.
The amended complaint alleges a FDCPA violation under ...