United States District Court, E.D. California
ORDER TO THE PLAINTIFF TO FILE A SECOND AMENDED
COMPLAINT, TO NOTIFY THE COURT HE WISHES TO PROCEED ONLY ON
THE COGNIZABLE CLAIM OR TO DISMISS THE ACTION
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
Francis Goods is proceeding pro se and in forma
pauperis in this action against officers of the
Bakersfield Police Department and the City of Bakersfield.
(See Doc. 1 at 1-2; Doc. 5 at 1.) According to
Plaintiff, police officers used excessive force against him
during an arrest. Because Plaintiff fails to allege facts
sufficient to support his claims, the complaint is
DISMISSED with leave to amend.
plaintiff proceeds in forma pauperis, the Court is
required to review the complaint, and shall dismiss the
complaint if it 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). The Court must screen
the first amended complaint because an amended complaint
supersedes the previously filed complaint. See Forsyth v.
Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997);
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). A
plaintiff's 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).
rules for pleading complaints are governed by the Federal
Rules of Civil Procedure. A 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, 520-21 (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, a plaintiff must identify the
grounds upon which the complaint stands. Swierkiewicz v.
Sorema N.A., 534 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.2d 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
can be cured by an amendment. Lopez v. Smith, 203
F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
Section 1983 Claims
individual may bring an action for the deprivation of civil
rights pursuant to 42 U.S.C. § 1983 (“Section