United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
October 27, 2017, the court granted plaintiff's motion to
proceed in forma pauperis and dismissed
plaintiff's first amended complaint with leave to
amend. (ECF No. 6.) Thereafter, on November 6,
2017, plaintiff filed a second amended complaint, which
remains pending for screening in accordance with 28 U.S.C.
§ 1915. (ECF No. 7.) For the reasons discussed below,
the court recommends that plaintiff's second amended
complaint be DISMISSED without further leave to amend.
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 immune
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.
1984). However, the court is not required to grant leave to
amend when it would be futile. See Cahill v. Liberty Mut.
Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).
court's October 27, 2017 order dismissing the first
amended complaint with leave to amend, the court outlined the
foregoing pleading standards and observed that the first
amended complaint was:
vague and confusing, consisting of various forms with
scribbled notations. As best the court can tell, plaintiff is
attempting to sue several defendants that were in some way
affiliated with plaintiff's prior state court criminal
case. However, beyond conclusory assertions, plaintiff does
not specify how each defendant was involved, does not allege
what specific claims are asserted against each defendant, and
does not plead any factual allegations from which the court
can draw a reasonable inference that the defendants are
liable under any specific claims.
No. 6 at 3.) Nevertheless, in light of plaintiff's
pro se status, the court concluded that it was
appropriate to provide plaintiff, having been notified of the
pleading standards and the deficiencies of the first amended
complaint, with an opportunity to amend his complaint.
noted above, plaintiff subsequently filed a second amended
complaint. (ECF No. 7.) The second amended complaint, which
consists of 75 pages, does not cure the deficiencies
identified by the court, and again consists of vague and
conclusory allegations of fraud, perjury, discrimination, and
other misconduct by various individuals, including judges,
prosecutors, and police officers, that were purportedly
involved in plaintiff's prior state court criminal case.
Plaintiff again does not specify how each defendant was
involved, does not allege what specific claims are asserted
against each defendant, and does not plead any factual
allegations from which the court can draw a reasonable
inference that the defendants are liable under any specific
claims. As such, the second amended complaint is subject to
court has carefully considered whether further leave to amend
should be granted. Plaintiff has already been notified of the
legal standards applicable to pleading viable claims and been
granted leave to amend to correct the deficiencies identified
by the court. However, despite receiving clear notice of the
deficiencies of his claims, plaintiff has failed to take even
minimal steps to cure them. Therefore, and because the nature
of plaintiff's claims also suggests that they are
implausible and frivolous, the court finds that granting
further leave to amend would be futile. See Cahill,
80 F.3d at 339.
IT IS HEREBY RECOMMENDED that:
1. Plaintiff s second amended complaint be dismissed without