United States District Court, E.D. California
MICHAEL W. DEJOHN, Plaintiff,
UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.
ORDER FINDING SERVICE OF PLAINTIFF'S SECOND
AMENDED COMPLAINT APPROPRIATE AND DIRECTING PLAINTIFF TO
COMPLETE SERVICE DOCUMENTS WITHIN THIRTY DAYS
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.
W. DeJohn is proceeding pro se and in forma
pauperis with this action against the United States
Department of Agriculture. For the following reasons, the
Court finds service of the Second Amended Complaint is
appropriate and directs Plaintiff to complete and return the
attached service documents.
plaintiff proceeds in forma pauperis, the Court is
required to review the complaint, and shall dismiss the case
at any time if the Court determines that the allegation of
poverty is untrue, or the action or appeal is
“frivolous, malicious or 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 claim is frivolous “when the facts
alleged arise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable
facts available to contradict them.” Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992).
Court must screen the Second Amended Complaint because an
amended complaint supersedes the previously filed complaint.
See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474
(9th Ci 1997); King v. Atiyeh, 814 F.2d 565, 567
(9th Cir. 1987).
rules for pleading complaints are governed by the Federal
Rules of Civil Procedure. pleading stating a claim for relief
must include a statement affirming the court's
jurisdiction, “a short and plain statement of the claim
showing the pleader is entitled to relief; and . . . a demand
for the relief sought, which may include relief in the
alternative or different types of relief.” Fed.R.Civ.P.
8(a). The Federal Rules adopt a flexible pleading policy, and
pro se pleadings are held to “less stringent
standards” than pleadings by attorneys. Haines v.
Kerner, 404 U.S. 519, 521-21 (1972).
complaint must give fair notice and state the elements of the
plaintiff's claim in a plain and succinct manner.
Jones v. Cmty Redevelopment Agency, 733 F.2d 646,
649 (9th Cir. 1984). Further, plaintiff must identify the
grounds upon which the complaint stands. Swierkiewicz v.
Sorema N.A., 53 U.S. 506, 512 (2002). The Supreme Court
Rule 8 does not require detailed factual allegations, but it
demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)
(internal quotation marks and citations omitted). Conclusory
and vague allegations do not support a cause of action.
Ivey v. Board of Regents, 673 F.2 266, 268 (9th Cir.
1982). The Court clarified further,
[A] complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is
plausible on its face.” [Citation]. 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. [Citation].
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.
[Citation]. Where a complaint pleads facts that are
“merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
Iqbal, 566 U.S. at 678 (citations omitted). When
factual allegations are well-pled, a court should assume
their truth and determine whether the facts would make the
plaintiff entitled to relief; legal conclusions in the
pleading are not entitled to the same assumption of truth.
Court has a duty to dismiss a case at any time it determines
an action fails to state a claim, “notwithstanding any
filing fee that may have been paid.” 28 U.S.C. §
1915e(2). Accordingly, a court “may act on its own
initiative to note the inadequacy of a complaint and dismiss
it for failure to state a claim.” See Wong v.
Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C.
Wright & A. Miller, Federal Practice and
Procedure, § 1357 at 593 (1963)). However, leave to
amend a complaint may be granted to the extent deficiencies
of the complaint can be cured by an amendment. Lopez v.
Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).