United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
Daniel Kane, who proceeds without counsel in this action, has
requested leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. (ECF No. 2.) Plaintiff's
application in support of his request to proceed in forma
pauperis makes the showing required by 28 U.S.C. §
1915. Accordingly, the court grants plaintiff's request
to proceed in forma pauperis.
determination that a plaintiff may proceed in forma
pauperis does not complete the required inquiry.
Pursuant to 28 U.S.C. § 1915, the court is directed to
dismiss the case at any time if it determines that 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
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.
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, 555-57
(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,
556 U.S. 662, 678 (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, 556 U.S. at 678. When considering whether a
complaint states a claim upon which relief can be granted,
the court must accept the well-pled factual allegations as
true, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and construe the complaint in the light most favorable to the
plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236
pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v.
Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir.
1988). Unless it is clear that no amendment can cure the
defects of a complaint, a pro se plaintiff proceeding in
forma pauperis is ordinarily entitled to notice and an
opportunity to amend before dismissal. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987);
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
case, plaintiff's complaint is rambling and vaguely
describes interactions that plaintiff allegedly had with a
wide variety of individuals at what appears to be
courthouses, shelters, and private businesses in the
Sacramento area. The court finds the allegations in
plaintiff's 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. More specifically, the
complaint fails to identify the specific claims being alleged
against each named defendant, and fails to allege
non-conclusory facts that, if accepted as true, would allow
the court to draw a reasonable inference that the named
defendants are liable for such claims.
light of the above, the court dismisses plaintiff's
complaint, but with leave to amend. If plaintiff elects to
file an amended complaint, it shall be captioned “First
Amended Complaint”; shall address the deficiencies
outlined above; and shall be filed within 28 days of this
is informed that the court cannot refer to a prior complaint
or other filing in order to make plaintiffs first amended
complaint complete. Local Rule 220 requires that an amended
complaint be complete in itself without reference to any
prior pleading. As a general rule, an amended complaint
supersedes the original complaint, and once the first amended
complaint is filed, the original complaint no longer serves
any function in the case.
nothing in this order requires plaintiff to file a first
amended complaint. If plaintiff determines that he is unable
to amend his complaint to state a viable claim in accordance
with his obligations under Federal Rule of Civil Procedure
11, he may alternatively file a notice of voluntary dismissal
of his claims without prejudice pursuant to Federal Rule of
Civil Procedure 41(a)(1)(A)(i) within 28 days of this order.
IT IS HEREBY ORDERED that:
Plaintiffs motion to proceed in forma pauperis (ECF
No. 2) is granted.
Plaintiffs complaint is dismissed with leave to amend.
Within 28 days of this order, plaintiff shall file either a
first amended complaint in compliance with this order or a
request for ...