(PS) Josephson v. Olson

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTOFFER ALLEN JOSEPHSON, No. 2:24-CV-0912-DAD-DMC 12 Plaintiff, 13 v. ORDER 14 JOYCE OLSON, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 Court is Plaintiff's original complaint, ECF No. 1. 19 The Court is required to screen complaints brought by litigants who, as here, have 20 been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this 21 screening provision, the Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B). 24 Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this Court must dismiss an 25 action if the Court determines that it lacks subject matter jurisdiction. Pursuant to Rule 12(h)(3), 26 the Court will also consider as a threshold matter whether it has subject-matter jurisdiction. 27 / / / 28 / / / 1 Moreover, the Federal Rules of Civil Procedure require that complaints contain a 2 “. . . short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 3 Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See 4 McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). 5 These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim 6 and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). 7 Because Plaintiff must allege with at least some degree of particularity overt acts by specific 8 defendants which support the claims, vague and conclusory allegations fail to satisfy this 9 standard. Additionally, it is impossible for the Court to conduct the screening required by law 10 when the allegations are vague and conclusory. 11 12 I. BACKGROUND 13 A. Procedural History 14 Plaintiff filed the operative complaint, ECF No. 1, on March 22, 2024. Plaintiff 15 then filed three separate exhibits, ECF Nos. 10, 11, and 13, in April 2024. Plaintiff filed a request 16 to add defendants to the action on July 25, 2024. See ECF No. 17. Plaintiff then filed a notice of 17 his plan to appeal at state conviction, ECF No. 19. On September 20, 2024, the Court responded 18 to ECF No. 17, construing it as a request for leave to amend, and clarified to Plaintiff that he can 19 amend his complaint as-of-right, directing Plaintiff to file an amended complaint within 30 days. 20 See ECF No. 20. On January 31, 2025, Plaintiff filed a “notice re family history ledger.” ECF No. 21 23. To date, Plaintiff has not filed an amended complaint. 22 Plaintiff filed a motion for ex parte restraining order, ECF No. 4, and the District 23 Judge referred the matter to the undersigned, ECF No. 5. The Court issued findings and 24 recommendations denying Plaintiff’s motion, ECF No. 21, and the District Judge adopted those 25 findings January 15, 2025. See ECF No. 22. 26 / / / 27 / / / 28 / / / 1 B. Plaintiff’s Allegations 2 In the original complaint, Plaintiff indicates that the basis for jurisdiction is a 3 federal question, writing “Land” in the form under the section that directs a plaintiff to “List the 4 specific federal statutes, federal treaties, and/or provisions of the United State Constitution that 5 are at issue in this case.” ECF No. 1, pg. 4. Plaintiff alleges that the amount in controversy is 6 “7.75 acres of family land that is not too be sold it is to be protected.” Id. at 5. 7 It appears from Plaintiff’s subsequent filings, ECF Nos. 10, 11, 13, 17, and 19, that 8 this case arises from Plaintiffs’ eviction from property and subsequent, related state criminal 9 proceedings against Plaintiff. In ECF No. 19, filed as a notice of plan to appeal, Plaintiff alleges a 10 Fourth Amendment violation. See ECF No. 19, pg. 3. 11 12 II. DISCUSSION 13 As currently pled, Plaintiff’s operative complaint, ECF No. 1, does not establish 14 subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). However, Plaintiff’s subsequent filings 15 indicate there may be subject-matter jurisdiction. Thus, leave to amend is appropriate. 16 Plaintiff is informed that, as a general rule, an amended complaint supersedes the 17 original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, 18 following dismissal with leave to amend, all claims alleged in the original complaint which are 19 not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th 20 Cir. 1987). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the prior 21 pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 22 amended complaint must be complete in itself without reference to any prior pleading. See id. 23 Plaintiff is informed that the amended complaint must include all allegations and Defendants 24 Plaintiff seeks to include in this action. The Court will not look to prior or subsequent filings to 25 supplement the amended complaint. 26 / / / 27 / / / 28 / / / 1 Il. CONCLUSION 2 Because it is possible that the deficiencies identified in this order may be cured by 3 || amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 4 | action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 5 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 6 || conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See 7 || Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 8 | each named defendant is involved and must set forth some affirmative link or connection between 9 || each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 10 | (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 11 Finally, Plaintiff is warned that failure to file an amended complaint within the 12 || time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 13 || 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 14 | with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 15 || See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiffs original complaint, ECF No. 1, is dismissed with leave to 18 || amend; and 19 2. Plaintiff shall file a first amended complaint within 30 days of the date of 20 || service of this order. 21 22 | Dated: April 11, 2025 Co 23 DENNIS M. COTA 4 UNITED STATES MAGISTRATE JUDGE 25 26 27 28