United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
seeks leave to proceed in forma pauperis pursuant to
28 U.S.C. 1915. His declaration makes the showing
required by 28 U.S.C. §1915(a)(1) and (2). See
ECF No. 2. Accordingly, the request to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
that plaintiff may proceed in forma pauperis does
not complete the required inquiry. Pursuant to §
1915(e)(2), the court must 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. As discussed below, plaintiff's
complaint fails to state a claim and must be dismissed.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
738, 740 (1976), construe the pleading in the light most
favorable to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969). A pro se plaintiff must satisfy the
pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a)(2) requires a complaint to include
“a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at 555
(citing Conley v. Gibson, 355 U.S. 41 (1957)).
a federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution
and by Congress. Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994). The basic federal jurisdiction
statutes, 28 U.S.C. §§ 1331 & 1332, confer
“federal question” and “diversity”
jurisdiction, respectively. Federal question jurisdiction
requires that the complaint (1) arise under a federal law or
the U.S. Constitution, (2) allege a “case or
controversy” within the meaning of Article III, §
2 of the U.S. Constitution, or (3) be authorized by a federal
statute that both regulates a specific subject matter and
confers federal jurisdiction. Baker v. Carr, 369
U.S. 186, 198 (1962). To invoke the court's diversity
jurisdiction, a plaintiff must specifically allege the
diverse citizenship of all parties, and that the matter in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a);
Bautista v. Pan American World Airlines, Inc., 828
F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside
the jurisdiction of the federal courts unless demonstrated
otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
subject matter jurisdiction may be raised at any time by
either party or by the court. Attorneys Trust v.
Videotape Computer Products, Inc., 93 F.3d 593, 594-95
(9th Cir. 1996).
complaint is difficult to decipher and largely
unintelligible. The complaint purports to allege a claim(s)
against the Modesto Police Department and the landlord of a
residence located at 207, Linden Street, Modesto, California
(the “landlord”). ECF No. 1 at 2. Plaintiff
alleges that the “landlord . . . and his tenents [sic]
are still participating in Identity Theft.”
Id. at 4. Under the section of her complaint
entitled “statement of claim, ” plaintiff
provides the following allegations: “They are
threanting [sic] my helpers and crew. And she is asking to
through [sic] off of her name and can use someone I know
credinatials [sic]. That's bad news. And overnight
delivery is FedEx Overnight.” Id. at 5.
allegations are insufficient to state a claim upon which
relief may be granted. Although the Federal Rules adopt a
flexible pleading policy, a complaint must give fair notice
and state the elements of the claim plainly and succinctly.
Jones v. Community Redev. Agency, 733 F.2d 646, 649
(9th Cir. 1984). Plaintiff must allege with at least some
degree of particularity overt acts which defendants engaged
in that support plaintiff's claim. Id. The
allegations must be short and plain, simple and direct and
describe the relief plaintiff seeks. Fed.R.Civ.P. 8(a);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
(2002); Galbraith v. County of Santa Clara, 307 F.3d
1119, 1125 (9th Cir. 2002).
complaint, as drafted, does not allege any facts that would
support a cognizable legal claim against either of the named
defendants, nor does it allege a basis for this court's
jurisdiction. Accordingly, the complaint must be dismissed.
Plaintiff, however, is granted leave to file an amended
complaint, if she can allege a cognizable legal theory and
sufficient facts in support of that cognizable legal theory.
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (en banc) (district courts must afford pro se litigants
an opportunity to amend to correct any deficiency in their
complaints). Should plaintiff choose to file an amended
complaint, the amended complaint shall clearly set forth the
allegations against defendant and shall specify a basis for
this court's subject matter jurisdiction. Any amended
complaint shall plead plaintiff's claims in
“numbered paragraphs, each limited as far as
practicable to a single set of circumstances, ” as
required by Federal Rule of Civil Procedure 10(b), and shall
be in double-spaced text on paper that bears line numbers in
the left margin, as required by Eastern District of
California Local Rules 130(b) and 130(c). Any amended
complaint shall also use clear headings to delineate each
claim alleged and against which defendant or defendants the
claim is alleged, as required by Rule 10(b), and must plead
clear facts that support each claim under each header.
plaintiff is informed that the court cannot refer to prior
pleadings in order to make an amended complaint complete.
Local Rule 220 requires that an amended complaint be complete
in itself. 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). Accordingly, once
plaintiff files an amended complaint, the original no longer
serves any function in the case. Therefore, “a
plaintiff waives all causes of action alleged in the original
complaint which are not alleged in the amended complaint,
” London v. Coopers & Lybrand, 644 F.2d
811, 814 (9th Cir. 1981), and defendants not named in an
amended complaint are no longer defendants. Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally,
the court cautions plaintiff that failure to comply with the
Federal Rules of Civil Procedure, this court's Local
Rules, or any court order may result in a recommendation that
this action be dismissed. See Local Rule 110.
it is hereby ORDERED that:
Plaintiffs request for leave to proceed in forma
pauperis, ECF No. 2, is granted.
Plaintiffs complaint is dismissed with leave to amend, as
Plaintiff is granted thirty days from the date of service of
this order to file an amended complaint. The amended
complaint must bear the docket number assigned to this case
and must be labeled “First Amended Complaint.”
Failure to timely file an amended complaint in ...