United States District Court, E.D. California
JAMES R. MCCOY, Plaintiff,
BECKER, et al., Defendants.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
James R. McCoy, who proceeds without counsel in this action,
requests leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (ECF No. 2.) Plaintiff's application
in support of his request to proceed in forma pauperis makes
the showing required by 28 U.S.C. § 1915. Accordingly,
the court grants plaintiff's request to proceed in forma
determination that a plaintiff may proceed in forma pauperis
does not complete the required inquiry. Pursuant 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 defendant.
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 Papasan v. Allain, 478 U.S. 265, 283
a federal court has an independent duty to assess whether
federal subject matter jurisdiction exists, whether or not
the parties raise the issue. See United Investors Life
Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967
(9th Cir. 2004) (stating that “the district court had a
duty to establish subject matter jurisdiction over the
removed action sua sponte, whether the parties
raised the issue or not”); accord Rains v.
Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996).
The court must sua sponte dismiss the case if, at any time,
it determines that it lacks subject matter jurisdiction.
Fed.R.Civ.P. 12(h)(3). A federal district court generally has
original jurisdiction over a civil action when: (1) a federal
question is presented in an action “arising under the
Constitution, laws, or treaties of the United States”
or (2) there is complete diversity of citizenship and the
amount in controversy exceeds $75, 000. See 28
U.S.C. §§ 1331, 1332(a).
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)
superseded on other grounds by statute as stated in Lopez
v. Smith, 203 F.3d 1122 (9th Cir. 2000)) (en banc);
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
under “Statement of Claim” the complaint reads
“[o]n this date I was driving and was accused of
driving re[ck]lessly, of high speed chase, poss[ess]ion of
a stolen prope[r]ty.” (ECF No. 1.) Plaintiff does not
include any additional details regarding what allegedly
occurred. As such, the complaint does not remotely allege
sufficient facts to state any claim.
construed, it appears that plaintiff may be attempting to
state a claim under 42 U.S.C. § 1983, because he names a
police officer as defendant and refers to charges that may
have followed a traffic stop. However, the complaint does not
identify any particular constitutional right that was
purportedly violated. Indeed, the complaint does not identify
any legal basis for plaintiff's claim, let alone any
basis for federal subject matter jurisdiction.
these reasons, the complaint is subject to dismissal.
Nevertheless, in light of plaintiff's pro se status, and
because it is at least conceivable that plaintiff could
allege additional facts to potentially state a 42 U.S.C.
§ 1983 claim, the court finds it appropriate to grant
plaintiff an opportunity to amend the complaint.
plaintiff elects to file an amended complaint, it shall be
captioned “First Amended Complaint, ” shall be
typed or written in legible handwriting, shall address the
deficiencies outlined in this order, and shall be filed
within 28 days of this order.
is informed that the court cannot refer to a prior complaint
or other filing in order to make plaintiff's first
amended complaint complete. Local Rule 220 requires that an
amended complaint be complete in itself without reference to
any prior pleading. As a general rule, an amended complaint
supersedes the original complaint, and once the first amended
complaint is filed, the original complaint no longer serves
any function in the case.
nothing in this order requires plaintiff to file a first
amended complaint. If plaintiff determines that he is unable
to amend his complaint in compliance with the court's
order at this juncture, he may alternatively file a notice of
voluntary dismissal of his claims without prejudice pursuant
to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28
days of this order.
IT IS HEREBY ORDERED that:
1. Plaintiff's motion to proceed in forma pauperis (ECF