United States District Court, E.D. California
DWAYNE L. DILLMAN, Plaintiff,
V. THAO, Defendant.
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
who filed this action while incarcerated but is no longer
incarcerated, is proceeding pro se. This matter was
accordingly referred to the undersigned by E.D. Cal.
302(c)(21). This matter was transferred to the Sacramento
division of the Eastern District of California on April 20,
2017. ECF No. 6. Prior to transfer, plaintiff was granted
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915, but his complaint was not screened. ECF No. 3.
The court now screens plaintiff's complaint and finds
that it must be dismissed with leave to amend for failure to
state a claim upon which relief can be granted.
federal IFP statute requires federal courts to dismiss a case
if the action is legally “frivolous or malicious,
” fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Plaintiff must assist the court in determining whether or not
the complaint is frivolous, by drafting the complaint so that
it complies with the Federal Rules of Civil Procedure
(“Fed. R. Civ. P.”). The Federal Rules of Civil
Procedure are available online at www. uscourts.
the Federal Rules of Civil Procedure, the complaint must
contain (1) a “short and plain statement” of the
basis for federal jurisdiction (that is, the reason the case
is filed in this court, rather than in a state court), (2) a
short and plain statement showing that plaintiff is entitled
to relief (that is, who harmed the plaintiff, and in what
way), and (3) a demand for the relief sought. Fed.R.Civ.P.
8(a). Plaintiff's claims must be set forth simply,
concisely and directly. Fed.R.Civ.P. 8(d)(1). Forms are
available to help pro se plaintiffs organize their complaint
in the proper way. They are available at the Clerk's
Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA
95814, or online at www. uscourts.
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.
2010), cert. denied, 564 U.S. 1037 (2011).
court applies the same rules of construction in determining
whether the complaint states a claim on which relief can be
granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(court must accept the allegations as true); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (court must construe
the complaint in the light most favorable to the plaintiff).
Pro se pleadings are held to a less stringent standard than
those drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic
recitation of the elements of a cause of action does not
suffice to state a claim. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
state a claim on which relief may be granted, the plaintiff
must allege enough facts “to state a claim to relief
that is plausible on its face.” 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. A pro se litigant is entitled to notice of the
deficiencies in the complaint and an opportunity to amend,
unless the complaint's deficiencies could not be cured by
amendment. See Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987), superseded on other grounds by statute as
stated in Lopez v. Smith, 203 F.3d 1122 (9th
Cir.2000)) (en banc).
brings suit against a police officer, defendant V. Thao. ECF
No. 1 at 3. Plaintiff alleges that while being arrested he
was “forced to endure the pain of [his] right knee
popped out of place, unable to do anything because [his]
hands were cuffed behind [his] back.” Id.
Plaintiff alleges that Officer Thao is employed with the
Oroville Police Department and was on duty at the time of the
incident, which took place on May 1, 2016 at 11:25 a.m. at
the intersection of Elgin St. and Spencer Ave. in Oroville,
CA. Id. Plaintiff states that he is “seeking
monies” including all court fees and lawyer fees, and
that he would like to have his case re-heard in Chico, CA.
complaint does not contain a “short and plain”
statement setting forth the basis for federal jurisdiction,
plaintiff's entitlement to relief, or the relief that is
sought, even though those things are required by Fed.R.Civ.P.
8(a)(1)-(3). The exact nature of what happened to plaintiff
is unclear from the complaint. It is not clear, for example,
that the officer plaintiff is suing was involved in his
arrest, as plaintiff merely alleges the officer was on duty
at the time of his arrest. The court cannot tell from
examining the complaint what legal wrong was done to
plaintiff, by whom and when, or how any alleged harm is
connected to the relief plaintiff seeks.
AMENDING THE COMPLAINT
plaintiff chooses to amend the complaint, the amended
complaint must allege facts establishing the existence of
federal jurisdiction. In addition, it must contain a short
and plain statement of plaintiff's claims. The
allegations of the complaint must be set forth in
sequentially numbered paragraphs, with each paragraph number
being one greater than the one before, each paragraph having
its own number, and no paragraph number being repeated
anywhere in the complaint. Each paragraph should be limited
“to a single set of circumstances” where
possible. Rule 10(b). As noted above, forms are available to
help plaintiffs organize their ...