“Dismissal of a pro se complaint without leave to 6 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 7 cured by amendment.”
How later courts described this case
- “Dismissal of a pro se complaint without leave to 6 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 7 cured by amendment.”
- “the district court did not abuse its discretion by denying McGee’s request to proceed 6 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 7 or without merit”
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 DONNELL BLEDSOE, No. 2:19-cv-1648 JAM DB PS
12 Plaintiff,
13 v. ORDER
14 SHAWN GRANBERRY, et al.,
15 Defendants,
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17 Plaintiff Donnell Bledsoe is proceeding in this action pro se. This matter was referred to
18 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 & 3.) Therein, plaintiff complains about copyright infringement.
21 The court is required to screen complaints brought by parties proceeding in forma
22 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
23 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated
24 below, plaintiff’s complaint will be dismissed with leave to amend.
25 I. Plaintiff’s Application to Proceed In Forma Pauperis
26 Plaintiff’s in forma pauperis application makes the financial showing required by 28
27 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma
28 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny
1 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed
2 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d
3 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th
4 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th
5 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed
6 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous
7 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the
8 District Court to examine any application for leave to proceed in forma pauperis to determine
9 whether the proposed proceeding has merit and if it appears that the proceeding is without merit,
10 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).
11 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of
12 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to
13 state a claim on which relief may be granted, or seeks monetary relief against an immune
14 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an
15 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.
16 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a
17 complaint as frivolous where it is based on an indisputably meritless legal theory or where the
18 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
19 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to
20 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
21 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
22 true the material allegations in the complaint and construes the allegations in the light most
23 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.
24 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
25 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
26 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true
27 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
28 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
1 The minimum requirements for a civil complaint in federal court are as follows:
2 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
3 jurisdiction depends . . . , (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
4 judgment for the relief the pleader seeks.
5 Fed. R. Civ. P. 8(a).
6 II. Plaintiff’s Complaint
7 A. Failure to State a Claim
8 Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing
9 that plaintiff is entitled to relief. In this regard, plaintiff’s complaint alleges that in the summer of
10 2015, plaintiff spoke with defendant Toni McElroy about producing plaintiff’s “6 year
11 documentary blueprint copyright into a 24HR live-stream music social page[.]” (Compl. (ECF
12 No. 1) at 5.1) No other factual allegations are provided, no elements of a claim clearly asserted,
13 nor is the alleged wrongful conduct of any other defendant stated.
14 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
15 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
16 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
17 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
18 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
19 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
20 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
21 557). A plaintiff must allege with at least some degree of particularity overt acts which the
22 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
23 It appears plaintiff may be attempting to allege a claim for copyright infringement. To
24 allege a claim of copyright infringement plaintiff must “must show: (1) ownership of a valid
25 copyright; and (2) that the defendant violated the copyright owner’s exclusive rights under the
26 Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. §
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1 Page number citations such as this one are to the page number reflected on the court’s CM/ECF
28 system and not to page numbers assigned by the parties.
1 501(a) (2003)). “Copying may be established by showing that the infringer had access to
2 plaintiff’s copyrighted work and that the works at issue are substantially similar in their protected
3 elements.” Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). Here, the
4 complaint fails to allege that plaintiff owned a valid copyright or facts establishing that each
5 named defendant violated plaintiff’s exclusive rights under the Copyright Act.
6 B. Venue
7 Pursuant to 28 U.S.C. § 1391(b):
8 A civil action may be brought in--
9 (1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;
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(2) a judicial district in which a substantial part of the events or
11 omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
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(3) if there is no district in which an action may otherwise be brought
13 as provided in this section, any judicial district in which any
defendant is subject to the court’s personal jurisdiction with respect
14 to such action.
15 Here, the complaint alleges that all the defendants reside in the judicial district for the
16 United States District Court for the Northern District of California. Although the complaint does
17 not allege where any of the events at issued occurred, in a supplemental filing plaintiff indicates
18 that they may have occurred in Las Vegas. (ECF No. 2 at 1.) Plaintiff is advised that it appears
19 that the Eastern District of California may not be the proper venue for this action.
20 III. Leave to Amend
21 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned
22 has carefully considered whether plaintiff may amend the complaint to state a claim upon which
23 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,
24 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d
25 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
26 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the
27 court does not have to allow futile amendments).
28 ////
1 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
2 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
3 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
4 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
5 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
6 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
7 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
8 1988)).
9 Here, given the vague and conclusory nature of the complaint’s allegations, the
10 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile.
11 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an
12 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended
13 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint
14 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
15 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While
16 legal conclusions can provide the complaint’s framework, they must be supported by factual
17 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from
18 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).
19 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
20 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
21 in itself without reference to prior pleadings. The amended complaint will supersede the original
22 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
23 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
24 and identified in the body of the complaint, and each claim and the involvement of each
25 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
26 must also include concise but complete factual allegations describing the conduct and events
27 which underlie plaintiff’s claims.
28 ////
1 CONCLUSION
2 Accordingly, IT IS HEREBY ORDERED that:
3 1. The complaint filed August 23, 2019 (ECF No. 1) is dismissed with leave to
4 amend.2
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.3 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: March 24, 2020 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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2 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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3 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.