United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Todd Ladon Johnson 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 pauperis.
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.
plaintiff asserts that defendant Lauren Vigen, a loss
prevention officer for Ace Hardware, assaulted and falsely
imprisoned plaintiff, after falsely accusing plaintiff of
stealing from the store. (See generally, ECF No. 1.)
Liberally construed, it appears that plaintiff may be
attempting to state claims under 42 U.S.C. § 1983 for
unreasonable seizure and excessive force in violation of
plaintiff's Fourth Amendment rights.
claims under 42 U.S.C. § 1983 generally do not lie
against a private individual who does not act under color of
state law. See Franklin v. Fox, 312 F.3d 423, 444
(9th Cir. 2002). To be sure, a private individual's
action can amount to state action under certain
circumstances. See Id. at 445 (outlining four
potential tests: (1) the public function test, (2) the joint
action test, (3) the state compulsion test, or (4) the
governmental nexus test); compare Tsao v. Desert Palace,
Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (holding that
owner of a private casino was a state actor under the joint
action test, in light of the casino's system of
cooperation and interdependence with the police department),
with Wilson v. McRae's, Inc., 413 F.3d 692, 693
(7th Cir. 2005) (holding that a department store that had a
suspected shoplifter arrested was not a state actor). In this
matter, defendant is a private loss prevention officer, and
plaintiff fails to demonstrate how defendant's conduct
constitutes state action.
the complaint does not state a cognizable federal claim
sufficient to invoke the court's federal question
jurisdiction. See 28 U.S.C. § 1331. To the
extent that plaintiff may assert a claim for state law
assault, such a claim does not invoke the court's
diversity of citizenship jurisdiction because plaintiff and
defendant are both citizens of California. See 28
U.S.C. § 1332(a).
the court lacks federal subject matter jurisdiction over
plaintiff's claims, and the complaint is subject to
dismissal. However, 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 claim
under 42 U.S.C. § 1983, 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 plaintiffs 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 ...