United States District Court, E.D. California
CESAR A. BETANCOURT, Plaintiff,
NEW CENTURY MORTGAGE CORPORATION, et al., Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND WITHIN THIRTY DAYS (Doc. 7)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
the Court is the screening determination regarding
Plaintiff's First Amended Complaint (the “Amended
Complaint”). (Doc. 7 at 1.) For the reasons provided
herein, the Court FINDS that the Amended Complaint fails to
state a claim on which relief may be granted. The Court
therefore DISMISSES the Amended Complaint with leave to amend
within thirty days.
December 9, 2016, Plaintiff filed his first pro se
complaint in this Court. (Doc. 1.) On the same date,
Plaintiff also filed an Application to Proceed Without
Prepayment of Fees and Affidavit (the “Motion to
Proceed In Forma Pauperis”). (Doc. 2.)
April 12, 2017, the Court entered an Order Dismissing
Complaint with Leave to Amend. (Doc. 6.) In this order, the
Court discussed various deficiencies in Plaintiff's
complaint, (see Id. at 3-5), and permitted Plaintiff
to “file an amended complaint curing the deficiencies
identified by the Court” within “thirty . . .
days” of the entry of the order, (id. at 5).
then filed his single-page Amended Complaint on April 26,
2017. (Doc. 7 at 1.) As such, the initial screening
determination for the Amended Complaint is currently before
are required to “screen . . . an action filed by a
plaintiff proceeding in forma pauperis.”
Shirley v. Univ. of Idaho, Coll. of Law, 800 F.3d
1193, 1194 (9th Cir. 2015) (emphasis added) (citing 28 U.S.C.
§ 1915(e)(2)(B)); see, e.g., Lopez v.
Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (stating
that 28 U.S.C. § 1915(e) “applies to all in
forma pauperis complaints” (emphasis added)).
Under the relevant provisions relating to screening
complaints, courts “shall dismiss the case at any time
if the court determines that” (1) “the allegation
of poverty is untrue, ” or (2) “the action . . .
is frivolous or malicious, ” “fails to state a
claim on which relief may be granted, ” or “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2). “A
plaintiff's claim is frivolous ‘when the facts
alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable
facts available to contradict them.'” Morales
v. City of Bakersfield, Case No.: 1:15-cv-01652-JLT,
2015 WL 9481021, at *1 (E.D. Cal. Dec. 29, 2015) (quoting
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)).
for failure to state a claim “is proper where there is
either a ‘lack of a cognizable legal theory' or
‘the absence of sufficient facts alleged under a
cognizable legal theory.'” MCI Commc'ns
Servs., Inc. v. Sec. Paving Co., Case No.
1:15-CV-01940-LJO-JLT, 2016 WL 1436521, at *2 (E.D. Cal. Apr.
12, 2016) (quoting Balisteri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). Federal
Rule of Civil Procedure 8(a) provides that “[a]
pleading that states a claim for relief must contain”
the following: (1) “a short and plain statement of the
grounds for the court's jurisdiction, ” (2)
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” and (3) “a
demand for the relief sought, which may include relief in the
alternative or different types of relief.” The pleading
standard provided by Rule 8 “does not require
‘detailed factual allegations, ' but it demands
more than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). “A pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Id. (quoting Twombly, 550
U.S. at 555). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 557).
state a claim, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570);
see also Twombly, 550 U.S. at 555 (stating that
“[f]actual allegations must be enough to raise a right
to relief above the speculative level”). “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, 556 U.S. at 678 (citation
omitted). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (citation omitted). “In practice, ‘a
complaint . . . must contain either direct or inferential
allegations respecting all the material elements necessary to
sustain recovery under some viable legal theory.'”
MCI Commc'ns Servs., Inc., 2016 WL 1436521, at
*2 (quoting Twombly, 550 U.S. at 562).
determining whether a complaint states a claim, the factual
“allegations in the complaint . . . are accepted as
true and construed in the light most favorable to the
plaintiff, ” Lazy Y Ranch Ltd. v. Behrens, 546
F.3d 580, 588 (9th Cir. 2008) (citing Sprewell v. Golden
State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)), and
“all doubts” are “resolve[d] . . . in the
pleader's favor, ” MCI Commc'ns Servs.,
Inc., 2016 WL 1436521, at *2 (citation omitted).
However, “to be entitled to the presumption of truth, .
. . a complaint . . . must contain sufficient allegations of
underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.” Starr
v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
as Plaintiff is appearing pro se in this action,
“the court must construe the pleadings liberally and
must afford [the] plaintiff the benefit of any doubt.”
Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621,
623 (9th Cir. 1988) (citing Bretz v. Kelman, 773
F.2d 1026, 1027 n.1 (9th Cir. 1985)). See generally
Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013)
(“Presumably unskilled in the law, the pro se litigant
is far more prone to make errors in pleading than a person
who benefits from the representation of counsel.”
(citation omitted)). Nonetheless, “the liberal pleading
standard . . . applies only to a plaintiff's factual
allegations.” Neitzke v. Williams, 490 U.S.
319, 330 n.9 (1989).
“[p]ro se complaints . . . may only be dismissed
‘if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.'” Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012)); see, e.g., Schucker v. Rockwood,
846 F.2d 1202, 1203-04 (9th Cir. 1988) (“Dismissal of a
pro se complaint without leave to amend is proper only if it
is absolutely clear that the deficiencies in the complaint
could not be cured by amendment.” (citation omitted)).
Thus, “[a] pro se litigant must be given leave to amend
his or her complaint, and some notice of its deficiencies,
unless it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995)
(citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th
Cir. 1987)). “However, if, after careful consideration,
it is clear that a complaint cannot be cured by amendment,
the [c]ourt may dismiss without leave to amend.”
Melger v. Obama, No. 2:16-cv-1527 AC P, 2017 WL
1213363, at *2 (E.D. Cal. Mar. 31, 2017) (citing
Cato, 70 F.3d at 105-06).