“Dismissal of a pro se complaint without leave to 3 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 4 cured by amendment.”
How later courts described this case
- “Dismissal of a pro se complaint without leave to 3 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 4 cured by amendment.”
- “the district court did not abuse its discretion by denying McGee’s request to proceed 7 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 8 or without merit”
- holding that while leave to amend shall be freely given, the court does not have 25 to allow futile amendments
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 LIUDMYLA IEGOROVA, No. 2:19-cv-0167 JAM DB PS
12 Plaintiff,
13 v. ORDER
14 LANA TSARICATI,
15 Defendant.
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17 Plaintiff, Liudmyla Iegorova, is proceeding in this action pro se. This matter was referred
18 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending
19 before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28
20 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about an altercation with the
21 defendant. (Compl. (ECF No. 1) at 5.)
22 The court is required to screen complaints brought by parties proceeding in forma
23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated
25 below, plaintiff’s complaint will be dismissed with leave to amend.
26 I. Plaintiff’s Application to Proceed In Forma Pauperis
27 Plaintiff’s in forma pauperis application makes the financial showing required by 28
28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma
1 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny
2 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed
3 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d
4 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th
5 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th
6 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed
7 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous
8 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the
9 District Court to examine any application for leave to proceed in forma pauperis to determine
10 whether the proposed proceeding has merit and if it appears that the proceeding is without merit,
11 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).
12 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of
13 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to
14 state a claim on which relief may be granted, or seeks monetary relief against an immune
15 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an
16 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.
17 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a
18 complaint as frivolous where it is based on an indisputably meritless legal theory or where the
19 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
20 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to
21 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
22 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
23 true the material allegations in the complaint and construes the allegations in the light most
24 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.
25 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
26 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
27 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true
28 ////
1 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
2 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
3 The minimum requirements for a civil complaint in federal court are as follows:
4 A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
5 jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
6 for judgment for the relief the pleader seeks.
7 Fed. R. Civ. P. 8(a).
8 II. Plaintiff’s Complaint
9 Here, plaintiff’s complaint fails to contain a short and plain statement of the grounds upon
10 which the court’s jurisdiction depends or a short and plain statement of a claim showing that
11 plaintiff is entitled to relief. In this regard, the complaint alleges that “[i]n May employee
12 Sacramento County Ms. Tsaricati provided 45 minute intake appointment” for plaintiff. (Compl.
13 (ECF No. 1) at 4.) The year this occurred in not alleged. “During this 45 minute[s]” Tsaricati
14 “left office two times to make copies” of plaintiff’s “ID, GREEN CARD, Social SECURITY
15 CARD.” (Id. at 4-5.) Tsaricati promise to pay plaintiff “CAPI ASSISTANCE SINCE
16 FEBRUARY 2017 TILL JULY 2017 AND MONEY FOR JOB CARE PROVIDERS SINCE
17 JULY 25, 2015[.]” (Id. at 5.) After plaintiff “refused to sign any documents . . . . Tsaricati
18 blocked door and push[ed] back [plaintiff] inside room.” (Id.) The complaint, however, does not
19 allege clearly what claim plaintiff is asserting against the defendant. Nor does it state the
20 elements of that claim plainly and succinctly.
21 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
22 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
23 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
24 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
25 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
26 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
27 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
28 ////
1 557). A plaintiff must allege with at least some degree of particularity overt acts which the
2 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
3 Moreover, jurisdiction is a threshold inquiry that must precede the adjudication of any
4 case before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of
5 Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited
6 jurisdiction and may adjudicate only those cases authorized by federal law. Kokkonen v.
7 Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37
8 (1992). “Federal courts are presumed to lack jurisdiction, ‘unless the contrary appears
9 affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting
10 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)).
11 Lack of subject matter jurisdiction may be raised by the court at any time during the
12 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir.
13 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has
14 subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the
15 obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v.
16 Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court
17 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.
18 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer
19 “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be
20 conferred by federal statutes regulating specific subject matter. “[T]he existence of federal
21 jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to
22 those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d
23 1108, 1113 (9th Cir. 2000).
24 District courts have diversity jurisdiction only over “all civil actions where the matter in
25 controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action
26 is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a
27 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are
28 additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different
1 States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be
2 a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss,
3 797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between
4 the parties-each defendant must be a citizen of a different state from each plaintiff.” In re
5 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008).
6 Here, the complaint does contain a vague and conclusory refernence to “assault.” (Compl.
7 (ECF No. 1) at 5.) Assault, however, is a state law cause of action which would not provide this
8 court with subject matter jurisdiction. And there are no allegations in the complaint with respect
9 to diversity jurisdiction.
10 The complaint also contains a citation to federal criminal statute 18 U.S.C. § 371.
11 (Compl. (ECF No. 1) at 1.) This criminal provision, however provides “no basis for civil
12 liability.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see also Jianjun Xie v.
13 Oakland Unified School Dist., No. C 12-2950 CRB, 2012 WL 5869707, at *5 (N.D. Cal. Nov. 19,
14 2012) (“Although Plaintiffs assert many causes of action through various federal criminal statutes
15 and California Penal Code provisions, no private right of action exists to enforce a criminal
16 statutory provision.”).
17 Accordingly, plaintiff’s complaint will be dismissed.
18 III. Leave to Amend
19 The undersigned has carefully considered whether plaintiff may amend the complaint to
20 state a claim upon which relief can be granted and over which the court would have jurisdiction.
21 “Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.”
22 California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir.
23 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293
24 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the court does not have
25 to allow futile amendments).
26 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
27 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
28 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
1 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
2 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
3 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
4 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
5 1988)).
6 Here, given the vague and conclusory nature of the complaint’s allegations, the
7 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile.
8 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an
9 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended
10 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint
11 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
12 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While
13 legal conclusions can provide the complaint’s framework, they must be supported by factual
14 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from
15 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).
16 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
17 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
18 in itself without reference to prior pleadings. The amended complaint will supersede the original
19 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
20 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
21 and identified in the body of the complaint, and each claim and the involvement of each
22 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
23 must also include concise but complete factual allegations describing the conduct and events
24 which underlie plaintiff’s claims.
25 ////
26 ////
27 ////
28 ////
1 CONCLUSION
2 Accordingly, IT IS HEREBY ORDERED that:
3 1. The complaint filed January 25, 2019 (ECF No. 1) is dismissed with leave to
4 amend.1
5 2. Within twenty-eight days from the date of this order, an amended complaint shall be
6 filed that cures the defects noted in this order and complies with the Federal Rules of Civil
7 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number
8 assigned to this action and must be titled “Amended Complaint.”
9 3. Failure to comply with this order in a timely manner may result in a recommendation
10 that this action be dismissed.
11 DATED: October 2, 2019 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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1 Plaintiff need not file another application to proceed in forma pauperis at this time unless
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plaintiff’s financial condition has improved since the last such application was submitted.
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2 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of
28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.