United States District Court, E.D. California
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
an inmate at Stanton Correctional Facility, seeks relief
pursuant to 42 U.S.C. § 1983 and has requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Although plaintiff is an inmate, this action does not
challenge plaintiff's conditions of confinement. This
proceeding was accordingly referred to this court by E.D.
Cal. R. (“Local Rule”) 302(c)(21).
has submitted the affidavit required by § 1915(a)
showing that plaintiff is unable to prepay fees and costs or
give security for them. ECF No. 22. Accordingly, the request
to proceed in forma pauperis will be granted. 28 U.S.C.
§ 1915(a). However, because plaintiff is an inmate, the
law requires that he pay the statutory filing fee of $350.00
for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1).
By this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
IFP status does not end the court's inquiry. The 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.”). Under 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. (“Rule”) 8(a).
Plaintiff's claims must be set forth simply, concisely
and directly. Rule 8(d)(1). The federal IFP statute requires
federal court 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 relied
from a defendant who is immune from such relief. 28 U.S.C.
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.
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.
FIRST AMENDED COMPLAINT
First Amended Complaint (“complaint”) names J.
Bondoc, Kenny Saroff, Guy McIntyre, GM Towing and Automotive,
Inc., GM Towing, LLC, and Jean Shiomotto as defendants in
this suit. ECF No. 21 at 4-5. Plaintiff alleges his due
process rights were violated by the defendants based on the
illegal seizure of his trailer and subsequent fines and
events related to the towing. Plaintiff brings this action
under 42 U.S.C. § 1983.
complaint, plaintiff alleges that defendant J. Bondoc, an
officer from the Fairfield Police Department, unreasonably
seized his trailer from a public street without providing
“proper prior notice.” ECF No. 21 at 7. In its
previous order, this court dismissed plaintiff's claim
against defendant J. Bondoc for failure to state a cognizable
claim, due to binding Ninth Circuit precedent that held:
“due process does not require that a pre-towing notice
be given to the owner of a vehicle which has been
unregistered for more than one year from the date on which it
is found parked on a public street before the car can be
towed under California Vehicle Code § 22651(o).”
Scofield v. Hillsborough, 862 F.2d 759, 764 (9th
Cir. 1988); see also ECF No. 19 at 5. Here,
plaintiff again states facts that fail to state a cognizable
claim against defendant J. Bondoc. Plaintiff alleges that
when he purchased the trailer ...