1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 FNU HAMEEDULLAH, No. 2:19-cv-1714-TLN-EFB PS 11 Plaintiff, 12 v. ORDER 13 GREG WHITE, BENJAMIN MARQUEZ, and ZAMBI, 14 Defendants. 15
16 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 17 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 18 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 19 Determining that plaintiff may proceed in forma pauperis does not complete the required 20 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 21 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 22 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 23 below, plaintiff’s complaint fails to state a claim and must be dismissed. 24 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 25 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 26 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 8 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 9 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Under this standard, the court must accept as true the allegations of the complaint in 11 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 12 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 13 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 14 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 15 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 16 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 17 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 18 Plaintiff’s complaint contains only brief and conclusory allegations that fails to state a 19 claim upon which relief may be granted. He alleges that in December 2018, he was arrested and 20 assaulted by several police officers. ECF No. 1 at 5. He claims that the officers’ conduct was 21 unconstitutional and caused him and his family to sustain physical and mental injuries. Id. at 6. 22 These allegations are too vague and conclusory to provide defendants with sufficient 23 notice of the factual basis for plaintiff’s claim(s). Jones v. Community Redev. Agency, 733 F.2d 24 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts 25 which defendants engaged in that support plaintiff’s claim. Id. The allegations must be short and 26 plain, simple and direct and describe the relief plaintiff seeks. Fed. R. Civ. P. 8(a); Swierkiewicz 27 v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 28 1125 (9th Cir. 2002). 1 Furthermore, the conclusory allegations are insufficient to state a claim for violation of 2 plaintiff’s constitutional rights under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff 3 must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the 4 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 5 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual 6 defendant is not liable on a civil rights claim unless the facts establish the defendant’s personal 7 involvement in the constitutional deprivation or a causal connection between the defendant’s 8 wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 9 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Plaintiff does not 10 identify the specific constitutional right that was allegedly violated, nor does he state facts 11 demonstrating that any of the defendants were personally involved in the violation of his 12 constitutional rights. 13 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff 14 will be granted leave to file an amended complaint. Any amended complaint must allege a 15 cognizable legal theory against a proper defendant and sufficient facts in support of that 16 cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 17 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 18 their complaints). Should plaintiff choose to file an amended complaint, the amended complaint 19 shall clearly set forth the allegations against each defendant and shall specify a basis for this 20 court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in 21 “numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as 22 required by Federal Rule of Civil Procedure
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 FNU HAMEEDULLAH, No. 2:19-cv-1714-TLN-EFB PS 11 Plaintiff, 12 v. ORDER 13 GREG WHITE, BENJAMIN MARQUEZ, and ZAMBI, 14 Defendants. 15
16 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 17 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 18 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 19 Determining that plaintiff may proceed in forma pauperis does not complete the required 20 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 21 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 22 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 23 below, plaintiff’s complaint fails to state a claim and must be dismissed. 24 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 25 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 26 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 8 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 9 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Under this standard, the court must accept as true the allegations of the complaint in 11 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 12 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 13 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 14 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 15 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 16 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 17 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 18 Plaintiff’s complaint contains only brief and conclusory allegations that fails to state a 19 claim upon which relief may be granted. He alleges that in December 2018, he was arrested and 20 assaulted by several police officers. ECF No. 1 at 5. He claims that the officers’ conduct was 21 unconstitutional and caused him and his family to sustain physical and mental injuries. Id. at 6. 22 These allegations are too vague and conclusory to provide defendants with sufficient 23 notice of the factual basis for plaintiff’s claim(s). Jones v. Community Redev. Agency, 733 F.2d 24 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts 25 which defendants engaged in that support plaintiff’s claim. Id. The allegations must be short and 26 plain, simple and direct and describe the relief plaintiff seeks. Fed. R. Civ. P. 8(a); Swierkiewicz 27 v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 28 1125 (9th Cir. 2002). 1 Furthermore, the conclusory allegations are insufficient to state a claim for violation of 2 plaintiff’s constitutional rights under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff 3 must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the 4 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 5 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual 6 defendant is not liable on a civil rights claim unless the facts establish the defendant’s personal 7 involvement in the constitutional deprivation or a causal connection between the defendant’s 8 wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 9 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Plaintiff does not 10 identify the specific constitutional right that was allegedly violated, nor does he state facts 11 demonstrating that any of the defendants were personally involved in the violation of his 12 constitutional rights. 13 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff 14 will be granted leave to file an amended complaint. Any amended complaint must allege a 15 cognizable legal theory against a proper defendant and sufficient facts in support of that 16 cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 17 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 18 their complaints). Should plaintiff choose to file an amended complaint, the amended complaint 19 shall clearly set forth the allegations against each defendant and shall specify a basis for this 20 court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in 21 “numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as 22 required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper 23 that bears line numbers in the left margin, as required by Eastern District of California Local 24 Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each 25 claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 26 10(b), and must plead clear facts that support each claim under each header. 27 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 28 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 1 || complete in itself. This is because, as a general rule, an amended complaint supersedes the 2 | original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 3 || plaintiff files an amended complaint, the original no longer serves any function in the case. 4 | Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 5 || alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 6 || 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 7 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 8 || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 9 || may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 10 | HI. Conclusion 11 Accordingly, it is hereby ORDERED that: 12 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF Nos. 2, 7) is granted. 13 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 14 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 15 || complaint. The amended complaint must bear the docket number assigned to this case and must 16 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 17 || accordance with this order will result in a recommendation this action be dismissed. 18 | DATED: February 5, 2020. 19 tid, PDEA 20) EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28