United States District Court, E.D. California
DARON M. OLIVER Plaintiff,
MICHAEL L. RAMSEY et al., Defendants.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Daron Oliver, who proceeds in this action without counsel,
has requested 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.
is legally frivolous when it lacks an arguable basis either
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). The court may, therefore, dismiss a
claim 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.
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
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's complaint is handwritten and barely legible.
As best the court can tell, plaintiff alleges that District
Attorney Michael Ramsey hired Public Defender Robert Marshall
who then employed Bobbi Holocraft as an interpreter. Bobbi
Holocract, plaintiff alleges, made a false statement
regarding plaintiff, which presumably resulted in damages.
(See ECF No. 1.)
complaint, to the extent that it is intelligible, does not
allege sufficient facts from which the court can draw a
reasonable inference that a constitutional violation of some
sort occurred to support a claim under 42 U.S.C. § 1983.
Indeed, plaintiff does not even identify a particular
constitutional right that was violated.
Ninth Circuit has held that Section 1983 claims can be
brought against social workers who offered perjured
testimony. Hardwick v. Cty. of Orange, 844 F.3d 1112
(9th Cir. 2017). Hardwick involved egregious
conduct, “well outside of the social workers'
legitimate role as quasi-prosecutorial advocates, ”
which precluded the social workers from asserting qualified
or absolute immunity. Id. at 1116. While the present
case involves an interpreter, not a social worker, presumably
similar analysis would apply. However, plaintiff has provided
nothing beyond a threadbare assertion that defendant
Holocraft “made false statement[s] to [a] probation
officer and [the] court.” Without additional factual
assertions plaintiff has not stated a claim for which relief
can be granted and it is unclear whether defendants would be
entitled to immunity. See 28 U.S.C. § 1915
(instructing courts to dismiss claims that fail to state a
claim on which relief can be granted or that seek monetary
relief against an immune defendant). Thus, it would appear
that plaintiff's complaint would be subject to dismissal.
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 ...