Kimberly Wilburn v. Buckingham Property Management, et. al.

Opinion

1 2 3 4 5 6 7 10 11 KIMBERLY WILBURN, No. 2:26-cv-02574-DJC-CKD PS 12 Plaintiff, 13 v. ORDER GRANTING IFP REQUEST 14 BUCKINGHAM PROPERTY AND DISMISSING WITH LEAVE TO 15 MANAGEMENT, et. al., AMEND 16 Defendants.

17 18 Plaintiff Kimberly Wilburn proceeds pro se in this action which is referred to the 19 undersigned by Local Rule 302(c)(21) pursuant to 28 U.S.C. § 636(b). Plaintiff has filed an 20 application in support of her request to proceed in forma pauperis which makes the showing 21 required by 28 U.S.C. § 1915(a). (ECF No. 2.) The request will be granted. 22 I. SCREENING REQUIREMENT 23 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 24 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a 25 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 26 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 27 (2000). In performing this screening, the court liberally construes a pro se plaintiff’s pleadings. 28 1 See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v. MacDougall, 454 2 U.S. 364, 365 (1982) (per curiam). 4 Plaintiff’s complaint names Buckingham Property Management, HUD, and Mike Condry 5 as defendants. The complaint is devoid of factual allegations. (ECF No. 1 at 5.) 7 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 8 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a 9 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 10 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 11 (2000). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 13 court accepts as true the factual allegations contained in the complaint, unless they are clearly 14 baseless or fanciful, and construes those allegations in the light most favorable to the plaintiff. 15 See Neitzke, 490 U.S. at 327; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 16 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011). 17 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines 18 v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory 19 allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council 20 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of 21 action does not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 22 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 23 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 24 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial 25 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 26 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A pro se 27 litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend 28 unless the complaint’s deficiencies could not be cured by amendment. See Noll v. Carlson, 809 1 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in Lopez v. 2 Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). 3 IV. THE COMPLAINT FAILS TO STATE A CLAIM AND FAILS TO SET 5 Although plaintiff references Title 42 USC Sections 1982 and 1983, she has not provided any 6 facts from which the court can infer a cause of action over which the court has original 7 jurisdiction. See McDaniel v. Hinch, No. 2:17-cv 02448-KJM-CKD (E.D. Cal. July 11, 2018) g (“[W]ith no stated claim triggering either diversity or federal question jurisdiction, the complaint 9 is properly subject to dismissal for lack of jurisdiction”). The complaint must be dismissed, but plaintiff is granted leave to file an amended

D complaint. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure the defect... a pro se litigant is entitled to notice of the

14 complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.”). An

15 amended complaint should be titled “First Amended Complaint.” Local Rule 220 requires that an

16 amended complaint be complete by itself without reference to any prior pleading. 7 For the reasons set forth above, IT IS ORDERED as follows:

12 1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is granted. 19 2. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend.

30 3. 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; failure to file an amended complaint in accordance

73 with this order will result in a recommendation that this action be dismissed.

54 Dated: July 30, 2026 / a8 ft a

6 UNITED STATES MAGISTRATE JUDGE

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