United States District Court, E.D. California
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se and in forma pauperis.
Plaintiff has filed an amended complaint.
federal in forma pauperis statute authorizes federal courts
to dismiss a case if the action is legally “frivolous
or malicious, ” fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
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.
order 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, 555-557 (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).
court finds the allegations in plaintiff's amended 79
page complaint so vague and conclusory that it is unable to
determine whether the current action is frivolous or fails to
state a claim for relief. The court has determined that the
complaint does not contain a short and plain statement as
required by Fed.R.Civ.P. 8(a)(2). 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. Because plaintiff has failed to comply with the
requirements of Fed.R.Civ.P. 8(a)(2), the complaint must be
dismissed. The court will, however, grant leave to file an
plaintiff chooses to amend the complaint, plaintiff must set
forth the jurisdictional grounds upon which the court's
jurisdiction depends. Federal Rule of Civil Procedure 8(a).
Further, plaintiff must demonstrate how the conduct
complained of has resulted in a deprivation of
plaintiff's federal rights. See Ellis v.
Cassidy, 625 F.2d 227 (9th Cir. 1980). As the pleadings
presently stand, the court cannot discern any proper basis
for subject matter jurisdiction. Plaintiff complains about
identity theft and problems with her internet service. The
connection between plaintiff's complaints and the
defendants is indecipherable. Further, plaintiff's
complaint is disjointed, failing to set forth subject matter
jurisdiction or understandable causes of action.
model for drafting a second amended complaint, plaintiff is
directed to McHenry v. Renne, 84 F.3d 1172, 1177
(9th Cir. 1996). There, the Ninth Circuit Court of Appeal
upheld the dismissal of a complaint it found to be
“argumentative, prolix, replete with redundancy, and
largely irrelevant. It consists largely of immaterial
background information.” It observed that the Federal
Rules require that a complaint consist of “simple,
concise, and direct” averments. Id. As a model
of concise pleading, the court quoted the standard form
negligence complaint from the Appendix to the Federal Rules
of Civil Procedure:
1. Allegation of jurisdiction.
2. On June 1, 1936, in a public highway, called Boylston
Street, in Boston Massachusetts, defendant negligently drove
a motor vehicle against plaintiff, who was then crossing said
3. As a result plaintiff was thrown down and had his leg
broken, and was otherwise injured, was prevented from
transacting his business, suffered great pain of body and
mind, and incurred expenses for medical attention and
hospitalization in the sum of one thousand dollars.
Wherefore plaintiff demands judgment against defendant in the
sum of one thousand dollars.
Id. Accordingly, any amended complaint should not
exceed fifteen pages.
addition, plaintiff is informed that the court cannot refer
to a prior pleading in order to make plaintiff's amended
complaint complete. Local Rule 15-220 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. ...