United States District Court, E.D. California
LOUIS E. BERSHELL, JR., Plaintiff,
LOOMIS, GARDNER AND BRINKS ARMOURED, et al., Defendants.
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se. Plaintiff has requested
authority pursuant to 28 U.S.C. § 1915 to proceed in
forma pauperis. This proceeding was referred to this court by
Local Rule 302(c)(21).
has submitted the affidavit required by § 1915(a)
showing that plaintiff is unable to prepay fees and costs or
give security for them. (See ECF No. 2.)
Accordingly, the request to proceed in forma pauperis will be
granted. 28 U.S.C. § 1915(a). Plaintiff's second
motion to proceed in forma pauperis, ECF No. 3, will be
denied as moot.
federal in forma pauperis statute authorizes federal courts
to dismiss a case if the action is legally “frivolous
or malicious, ” fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
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.
order to 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, 129 S.Ct. 1937, 1949 (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, 129 S.Ct. at 1949.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
court finds the allegations in plaintiff's complaint so
vague and conclusory that it is unable to determine whether
the current action is frivolous or fails to state a claim for
relief. The court has determined that the complaint does not
contain a short and plain statement as required by
Fed.R.Civ.P. 8(a)(2). Although the Federal Rules adopt a
flexible pleading policy, a complaint must give fair notice
and state the elements of the claim plainly and succinctly.
Jones v. Community Redev. Agency, 733 F.2d 646, 649
(9th Cir. 1984). Plaintiff must allege with at least some
degree of particularity overt acts which each named defendant
engaged in that support plaintiff's claim against the
defendants. Id. Because plaintiff has failed to
comply with the requirements of Fed.R.Civ.P. 8(a)(2), the
complaint must be dismissed. The court will, however, grant
leave to file an amended complaint.
plaintiff chooses to amend the complaint, plaintiff must set
forth the jurisdictional grounds upon which the court's
jurisdiction depends. Federal Rule of Civil Procedure 8(a).
Further, plaintiff must demonstrate how the conduct
complained of has resulted in a deprivation of plaintiff s
federal rights. See Ellis v. Cassidy, 625 F.2d 227
(9th Cir. 1980).
addition, plaintiff is informed that the court cannot refer
to a prior pleading in order to make plaintiffs amended
complaint complete. Local Rule 220 requires that an amended
complaint be complete in itself without reference to any
prior pleading. This is because, as a general rule, an
amended complaint supersedes the original complaint. See
Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once
plaintiff files an amended complaint, the original pleading
no longer serves any function in the case. Therefore, in an
amended complaint, as in an original complaint, each claim
and the involvement of each defendant must be sufficiently
accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiffs request to proceed in forma pauperis (ECF No.
2) is granted;
2. Plaintiffs request to proceed in forma pauperis (ECF No.
3) is denied as moot;
3. Plaintiffs complaint (ECF No. 1) is dismissed; and
4. Plaintiff is granted thirty days from the date of service
of this order to file an amended complaint that complies with
the requirements of the Federal Rules of Civil Procedure, and
the Local Rules of Practice; the amended complaint must bear
the docket number assigned this case and must be labeled
“Amended Complaint”; plaintiff must file an
original and two copies of the amended complaint; failure to
file an ...