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).
one-page complaint alleges that on an unspecified date he
purchased a ticket for an Amtrak train. ECF No. 1. He claims
that when he attempted to board a train at the Chico,
California Amtrak station, a female “ticket
taker” denied him boarding privileges. He appears to
contend that the refusal to allow him to board the train
violated the Americans with Disabilities Act
II of the ADA prohibits a public entity from discriminating
against a qualified individual with a disability on the basis
of disability. 42 U.S.C. § 12132. “To state a
claim of disability discrimination under Title II, the
plaintiff must allege four elements: (1) the plaintiff is an
individual with a disability; (2) the plaintiff is otherwise
qualified to participate in or receive the benefit of some
public entity's services, programs, or activities; (3)
the plaintiff was either excluded from participation in or
denied the benefits of the public entity's services,
programs, or activities, or was otherwise discriminated
against by the public entity; and (4) such exclusion, denial
of benefits, or discrimination was by reason of the
plaintiff's disability.” Thompson v.
Davis, 295 F.3d 890, 895 (9th Cir.2002); see also
Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.
2001) (“If a public entity denies an otherwise
‘qualified individual' ‘meaningful
access' to its ‘services, programs, or
activities' ‘solely by reason of' his or her
disability, that individual may have an ADA claim against the
plaintiff has failed to allege that he was denied a benefit
on account of his disability. He does not allege that
defendant denied him access to access to its train on account
of his disability. Indeed, plaintiff does not even allege
that he is an individual with a disability. Plaintiff has
therefore failed to state a claim for violation of the ADA.
Accordingly, plaintiff's complaint must be dismissed for
failure to state a claim.
will be granted leave to file an amended complaint, if he can
allege a cognizable legal theory against a proper defendant
and with 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 claims and allegations against each defendant. Any
amended complaint must cure the deficiencies identified above
and also adhere to the following requirements:
amended complaint must identify as a defendant only persons
who personally participated in a substantial way in depriving
him of a federal constitutional right. Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person
subjects another to the deprivation of a constitutional right
if he does an act, participates in another's act or omits
to perform an act he is legally required to do that causes
the alleged deprivation). It must also contain a caption
including the names of all defendants. Fed.R.Civ.P. 10(a).
amended complaint must be written or typed so that it so that
it is complete in itself without reference to any earlier
filed complaint. E.D. Cal. L.R. 220. This is because an
amended complaint supersedes any earlier filed complaint, and
once an amended complaint is filed, the earlier filed
complaint no longer serves any function in the case. See
Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997)
(the “‘amended complaint supersedes the original,
the latter being treated thereafter as
non-existent.'”) (quoting Loux v. Rhay,
375 F.2d 55, 57 (9th Cir. 1967)).
plaintiff is cautioned that failure to comply with the
Federal Rules of Civil Procedure, this court's Local
Rules, or any court order may result in ...