United States District Court, E.D. California
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
proceeding pro se, brings this civil action. Pending before
the court is plaintiff's complaint (Doc. 1), first
amended complaint (Doc. 4), second amended complaint (Doc. 5)
and third amended complaint (Doc. 6). Plaintiff as also
requested leave to proceed in forma pauperis (Doc. 2).
has submitted the affidavit required by 28 U.S.C. §
1915(a) showing that plaintiff is unable to prepay fees and
costs or give security therefor. His motion for leave to
proceed in forma pauperis (Doc. 2) will therefore be granted.
the multiple complaints plaintiff has filed, the Federal
Rules of Civil Procedure provide that a party may amend his
pleading once as a matter of right at any time before being
served with a responsive pleading. Fed.R.Civ.P. 15(a). Any
other amendment is allowed only upon consent by the opposing
party or the court's leave. Id. Here, plaintiff
did not request leave of court to file any of his amended
complaints. His first amended complaint (Doc. 4) would be
considered his once as of right amendment. Without leave of
court, the other amended complaints were filed without
authorization, and will be stricken from the docket. This
action, therefore, now proceeds on the amended complaint,
which supercedes the prior complaint and is addressed in this
order as the operative complaint.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court is also required to screen
complaints brought by litigants who have been granted leave
to proceed in forma pauperis. See 28 U.S.C. §
1915(e)(2). Under these screening provisions, the court must
dismiss a complaint or portion thereof if it: (1) is
frivolous or malicious; (2) fails to state a claim upon which
relief can be granted; or (3) seeks monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. §§ 1915(e)(2)(A), (B) and 1915A(b)(1), (2).
Moreover, pursuant to Federal Rule of Civil Procedure 12(h),
this court must dismiss an action “[w]henever it
appears . . . that the court lacks jurisdiction of the
subject matter . . . .” Because plaintiff, who is not a
prisoner, has been granted leave to proceed in forma
pauperis, the court will screen the complaint pursuant to
Federal Rules of Civil Procedure require that complaints
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). This means that claims must be stated
simply, concisely, and directly. See McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to
Fed.R.Civ.P. 8(e)(1)). These rules are satisfied if the
complaint gives the defendant fair notice of the
plaintiff's claim and the grounds upon which it rests.
See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir.
1996). “Although a pro se litigant . . . may be
entitled to great leeway when the court construes his
pleadings, those pleadings nonetheless must meet some minimum
threshold in providing a defendant with notice of what it is
that it allegedly did wrong.” Brazil v. U.S.
Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
“[A] pro se litigant is not excused from knowing the
most basic pleading requirements.” Am. Ass'n of
Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107
(9th Cir. 2000).
order to survive dismissal for failure to state a claim 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, 1964 (2007). While “[s]pecific facts are
not necessary; the statement [of facts] need . . . . give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v.
Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007)
(internal quotes omitted). In reviewing a complaint under
this standard, the court must accept as true the allegations
of the complaint in question, see id., and construe
the pleading in the light most favorable to the plaintiff.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
claim is unclear. It appears plaintiff is complaining about
having to repay an overdraft debt in one of his accounts at
Wells Fargo. He states the bank required him to repay an
overdraft amount of $669.00 in order to get his savings
account withdrawal privileges restored. The funds to cover
the checking overdraft was from his Social Security direct
deposit. He therefore alleges the defendant violated the
American with Disabilities Act.
plaintiff's complaint suffers from numerous deficiencies.
Overall, plaintiff's claims and allegations are too vague
for the court to determine whether he is able to state a
claim for relief. The court has an obligation to construe pro
se pleadings liberally. Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the
court's liberal interpretation of a pro se complaint may
not supply essential elements of the claim that were not
pled. Ivey v. Board of Regents of Univ. of Alaska,
673 F.2d 266, 268 (9th Cir. 1982).
states this court has jurisdiction to hear violations of
American's with Disabilities Act (ADA). It therefore
appears that he is attempting to state a claim for violation
of the ADA. Plaintiff, however, fails to plead sufficient
facts to show that he is covered by the ADA or that there was
a violation of the ADA, and if there was, what title was
establish a violation of Title II of the ADA, a plaintiff
must show that (1) she is a qualified individual with a
disability; (2) she was excluded from participation in or
otherwise discriminated against with regard to a public
entity's services, programs, or activities, and (3) such
exclusion or discrimination was by reason of her disability.
See Weinreich v. Los Angeles County Metro. Transp.
Auth., 114 F.3d 976, 978 (9th Cir.1997).
plaintiff fails to indicate what title of the ADA he claims
the defendants violated, but the court is assuming he
intended to set forth a Title II violation. However, he fails
to plead sufficient facts to state a prima facie violation.
Not only does he fail to plead what disability he has to
qualify him for ADA ...