United States District Court, E.D. California
TERESA Y. SMITH, Plaintiff,
STOCKTON SOCIAL SECURITY, et al., Defendants.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
Teresa Smith, is proceeding in this action pro se. This
matter was referred to the undersigned in accordance with
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending
before the court is plaintiff's complaint and motion to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
(ECF Nos. 1 & 2.) Therein, plaintiff appears to complain
about an incident involving the Stockton Police Department.
court is required to screen complaints brought by parties
proceeding in forma pauperis. See 28 U.S.C. §
1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122,
1129 (9th Cir. 2000) (en banc). Here, plaintiff's
complaint is deficient. Accordingly, for the reasons stated
below, plaintiff's complaint will be dismissed with leave
Plaintiff's Application to Proceed In Forma
in forma pauperis application makes the financial showing
required by 28 U.S.C. § 1915(a)(1). However, a
determination that a plaintiff qualifies financially for in
forma pauperis status does not complete the inquiry required
by the statute. “‘A district court may deny leave
to proceed in forma pauperis at the outset if it appears from
the face of the proposed complaint that the action is
frivolous or without merit.'” Minetti v. Port
of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting
Tripati v. First Nat. Bank & Trust, 821 F.2d
1368, 1370 (9th Cir. 1987)); see also McGee v. Department
of Child Support Services, 584 Fed.Appx. 638 (9th Cir.
2014) (“the district court did not abuse its discretion
by denying McGee's request to proceed IFP because it
appears from the face of the amended complaint that
McGee's action is frivolous or without merit”);
Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)
(“It is the duty of the District Court to examine any
application for leave to proceed in forma pauperis to
determine whether the proposed proceeding has merit and if it
appears that the proceeding is without merit, the court is
bound to deny a motion seeking leave to proceed in forma
the court must dismiss an in forma pauperis case at any time
if the allegation of poverty is found to be untrue or if it
is determined that 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.
See 28 U.S.C. § 1915(e)(2). A complaint is
legally frivolous when it lacks an arguable basis 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). Under this standard, a court must dismiss a
complaint 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; 28
U.S.C. § 1915(e).
state a claim on which relief may be granted, the plaintiff
must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). In considering
whether a complaint states a cognizable claim, the court
accepts as true the material allegations in the complaint and
construes the allegations in the light most favorable to the
plaintiff. Hishon v. King & Spalding, 467 U.S.
69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex
Hosp., 425 U.S. 738, 740 (1976); Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining
Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
minimum requirements for a civil complaint in federal court
are as follows:
A pleading which sets forth a claim for relief . . . shall
contain (1) a short and plain statement of the grounds upon
which the court's jurisdiction depends . . ., (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for judgment for the
relief the pleader seeks.
Fed. R. Civ. P. 8(a).
plaintiff's complaint fails to contain a short and plain
statement of a claim showing that plaintiff is entitled to
relief. In this regard, plaintiff's complaint alleges
that her oldest son “was attacked by 5 cops” on
November 21, 2014, ” and that an “officer chp
Lumsargis drawed guns (sic) on [plaintiff] that same
night.” (Compl. (ECF No. 1) at 4.) The complaint,
however, does not clearly allege a cause of action. And the
only defendants named in the complaint are the Stockton
Police Department and the California Highway Patrol.
(Id. at 1.)
the Federal Rules of Civil Procedure adopt a flexible
pleading policy, a complaint must give the defendant fair
notice of the plaintiff's claims and must allege facts
that state the elements of each claim plainly and succinctly.
Fed.R.Civ.P. 8(a)(2); Jones v. Community Redev.
Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of cause of
action will not do.' Nor does a complaint suffice if it
tenders ‘naked assertions' devoid of ‘further
factual enhancements.'” Ashcroft v. Iqbal,
556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S.
at 555, 557). A plaintiff must allege with at least some
degree of particularity overt acts which the defendants
engaged in that support the plaintiff's claims.
Jones, 733 F.2d at 649.
municipality may not be held liable under § 1983 solely
because it employs a tortfeasor.” Board of County
Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397,
403 (1997). However, a municipality may be liable under
§ 1983 where the municipality itself causes the
constitutional violation through a “policy or custom,
whether made by its lawmakers or those whose edicts or acts
may fairly be said to represent official policy[.]”
Monell v. Department of Social Services, 436 U.S.
658, 694 (1978). Municipal liability in a § 1983 case
may be premised upon: (1) an official policy; (2) a
“longstanding practice or custom which constitutes the
standard operating procedure of the local government
entity;” (3) the act of an “official whose acts
fairly represent official policy such that the challenged
action constituted official policy;” or (4) where
“an official with final policy-making authority
delegated that authority to, or ratified the decision of, a
subordinate.” Price v. Sery, 513 F.3d 962, 966
(9th Cir. 2008). To sufficiently plead a Monell
claim, allegations in a complaint “may not simply
recite the ...