The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 GAVIN MEHL, No. 2:19-cv-01005-TLN-CKD PS
12 Plaintiff,
13 v. ORDER
14 COUNTRYWIDE BANK, NA, et al.,
15 Defendants.
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17 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to
18 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by
19 Local Rule 302(c)(21).
20 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable
21 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma
22 pauperis will be granted. 28 U.S.C. § 1915(a).
23 The federal in forma pauperis statute authorizes federal courts to dismiss a case if the
24 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,
25 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
26 § 1915(e)(2).
27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th
1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
3 490 U.S. at 327.
4 In order to avoid dismissal for failure to state a claim a complaint must contain more than
5 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
6 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007). In other words,
7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
8 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim
9 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
10 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
11 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.
12 at 1949. When considering whether a complaint states a claim upon which relief can be granted,
13 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),
14 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
15 U.S. 232, 236 (1974).
16 Plaintiff claims this suit arises under federal question jurisdiction. The allegations in the
17 complaint are insufficient to identify any conceivable federal claim. Although plaintiff alleges
18 the defendants violated the Privacy Act, this statement alone is insufficient to establish the federal
19 claim or claims plaintiff is attempting to raise in his complaint.
20 Plaintiff also claims this suit arises under diversity of citizenship. For diversity
21 jurisdiction, each plaintiff’s state citizenship must be diverse from each defendant. “When a
22 plaintiff sues more than one defendant in a diversity action, the plaintiff must meet the
23 requirements of the diversity statute for each defendant or face dismissal.” Newman-Green, Inc.
24 v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989). Here, plaintiff does not meet the requirements of
25 the diversity statute for each defendant because plaintiff pleads that he and at least one defendant
26 are citizens of California. (ECF No. 1 at 3 (alleging defendant Rakesh Vij is a citizen of the State
27 of California).) As alleged, the complaint does not establish diversity jurisdiction.
28 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is
1 unable to determine whether the current action is frivolous or fails to state a claim for relief. The
2 court has determined that the complaint does not contain a short and plain statement as required
3 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a
4 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones
5 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at
6 least some degree of particularity overt acts which defendant engaged in that support plaintiff’s
7 claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2),
8 the complaint must be dismissed. The court will, however, grant leave to file an amended
9 complaint.
10 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional
11 grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a).
12 Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation
13 of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
14 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
15 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
16 complaint be complete in itself without reference to any prior pleading. This is because, as a
17 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
18 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
19 longer serves any function in the case. Therefore, in an amended complaint, as in an
20 original complaint, each claim and the involvement of each defendant must be sufficiently
21 alleged.
22 In accordance with the above, IT IS HEREBY ORDERED that:
23 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 6) is granted;
24 2. Plaintiff’s complaint (ECF No. 1) is dismissed; and
25 3. Plaintiff is granted thirty days from the date of service of this order to file an amended
26 complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the
27 Local Rules of Practice; the amended complaint must bear the docket number assigned this case
28 and must be labeled “Amended Complaint;” plaintiff must file an original and two copies of the
1 | amended complaint; failure to file an amended complaint in accordance with this order will result
2 | in a recommendation that this action be dismissed.
3 | Dated: February 4, 2020 Po Pg, fF
/- it LE 9
4 CAROLYN K. DELANEY
5 UNITED STATES MAGISTRATE JUDGE
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