United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
Michael Wickland, is proceeding in this action pro se. This
matter was referred to the undersigned in accordance with
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending
before the court are plaintiff's complaint and motion to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
(ECF Nos. 1 & 2.) Therein, plaintiff complains about
state court criminal proceedings.
Plaintiff's Application to Proceed In Forma
in forma pauperis application makes the financial showing
required by 28 U.S.C. § 1915(a)(1). However, a
determination that a plaintiff qualifies financially for in
forma pauperis status does not complete the inquiry required
by the statute. “‘A district court may deny leave
to proceed in forma pauperis at the outset if it appears from
the face of the proposed complaint that the action is
frivolous or without merit.'” Minetti v. Port
of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting
Tripati v. First Nat. Bank & Trust, 821 F.2d
1368, 1370 (9th Cir. 1987)); see also McGee v. Department
of Child Support Services, 584 Fed.Appx. 638 (9th Cir.
2014) (“the district court did not abuse its discretion
by denying McGee's request to proceed IFP because it
appears from the face of the amended complaint that
McGee's action is frivolous or without merit”);
Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)
(“It is the duty of the District Court to examine any
application for leave to proceed in forma pauperis to
determine whether the proposed proceeding has merit and if it
appears that the proceeding is without merit, the court is
bound to deny a motion seeking leave to proceed in forma
the court must dismiss an in forma pauperis case at any time
if the allegation of poverty is found to be untrue or if it
is determined that the action is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief against an immune defendant.
See 28 U.S.C. § 1915(e)(2). A complaint is
legally frivolous when it lacks an arguable basis 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). Under this standard, a court must dismiss a
complaint 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; 28
U.S.C. § 1915(e).
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.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). In considering
whether a complaint states a cognizable claim, the court
accepts as true the material allegations in the complaint and
construes the allegations in the light most favorable to the
plaintiff. Hishon v. King & Spalding, 467 U.S.
69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex
Hosp., 425 U.S. 738, 740 (1976); Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1989). 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).
minimum requirements for a civil complaint in federal court
are as follows:
A pleading which sets forth a claim for relief . . . shall
contain (1) a short and plain statement of the grounds upon
which the court's jurisdiction depends . . ., (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for judgment for the
relief the pleader seeks.
Fed. R. Civ. P. 8(a).
September 26, 2017, the undersigned issued an order finding
plaintiff's complaint deficient and granting plaintiff
leave to file an amended complaint. (ECF No. 7.) Although
plaintiff has filed various letters and statements, plaintiff
has not filed an amended complaint.(ECF Nos. 8-11.) This action
could be dismissed for this reason alone. See Local
Rule 110; Fed.R.Civ.P. 41(b). Moreover, as noted in the
September 26, 2017 order, plaintiff's complaint is
deficient in several respects.
complaint fails to contain a short and plain statement of a
claim showing that plaintiff is entitled to relief. In this
regard, plaintiff's complaint fails to allege a cause of
action. Instead, the complaint generally consists of a
two-page recounting of mistreatment plaintiff allegedly
received pursuant to an arrest in Alabama. (Compl. (ECF No.
1) at 7-8.) The complaint, however, fails to assert a cause
of action against a named defendant.
the Federal Rules of Civil Procedure adopt a flexible
pleading policy, a complaint must give the defendant fair
notice of the plaintiff's claims and must allege facts
that state the elements of each claim plainly and succinctly.
Fed.R.Civ.P. 8(a)(2); Jones v. Community Redev.
Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of cause of
action will not do.' Nor does a complaint suffice if it
tenders ‘naked assertions' devoid of ‘further
factual enhancements.'” Ashcroft v. Iqbal,
556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S.