“Dismissal of a pro se complaint without leave to 22 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 23 cured by amendment.”
How later courts described this case
- “Dismissal of a pro se complaint without leave to 22 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 23 cured by amendment.”
- “A litigant appearing in propria persona has no authority to represent anyone 16 other than himself.”
- holding that while leave to amend shall be freely given, the 16 court does not have to allow futile amendments
- “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”
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 NICOLUIS E. WILSON, No. 2:19-cv-1754 MCE DB PS
12 Plaintiff,
13 v. ORDER
14 VANCE RAYE, et al.,
15 Defendants,
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17 Plaintiff Nicoluis Wilson 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 the removal of a minor
21 from the home.
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 for
6 judgment for the relief the pleader seeks.
7 Fed. R. Civ. P. 8(a).
8 II. Plaintiff’s Complaint
9 Here, plaintiff’s complaint is deficient in several respects and must be dismissed.
10 A. Proceeding Pro Se
11 Plaintiff’s complaint purports to be brought by plaintiff and “A.M. a minor.” (Compl.
12 (ECF No. 1) at 1.) However, as noted above plaintiff is proceeding pro se. The right to represent
13 oneself pro se is personal to the plaintiff and does not extend to other parties. Simon v. Hartford
14 Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008); see also Russell v. United States, 308 F.2d 78, 79
15 (9th Cir. 1962) (“A litigant appearing in propria persona has no authority to represent anyone
16 other than himself.”) Thus, “a parent or guardian cannot bring an action on behalf of a minor
17 child without retaining a lawyer.” Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir.
18 1997).
19 B. Failure to State a Claim
20 Plaintiff’s complaint asserts two causes of action: violation of 42 U.S.C. § 1983 and fraud.
21 (Compl. (ECF No. 1) at 13, 15.) The causes of action are asserted against every defendant.
22 However, the complaint identifies at least eight separate defendants. (Id. at 1-6.) But the causes
23 of action do not allege how any identified defendant engaged in specific wrongful conduct.
24 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
25 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
26 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
27 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
28 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
1 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
2 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
3 557). A plaintiff must allege with at least some degree of particularity overt acts which the
4 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
5 And Rule 9(b) requires that “[i]n alleging fraud or mistake, a party must state with
6 particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
7 other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P 9(b). “Rule 9(b)
8 serves not only to give notice to defendants of the specific fraudulent conduct against which they
9 must defend, but also ‘to deter the filing of complaints as a pretext for the discovery of unknown
10 wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges,
11 and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society
12 enormous social and economic costs absent some factual basis.’” Bly–Magee v. California, 236
13 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac Elec. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir.
14 1996)).
15 Circumstances that must be stated with particularity pursuant to Rule 9(b) include the
16 “time, place, and specific content of the false representations as well as the identities of the
17 parties to the misrepresentations.” Sanford v. Memberworks, Inc., 625 F.3d 550, 558 (9th Cir.
18 2010) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)). Likewise,
19 “[u]nder California law, the ‘indispensable elements of a fraud claim include a false
20 representation, knowledge of its falsity, intent to defraud, justifiable reliance, and damages.’”
21 Vess v. Ciba—Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003) (quoting Moore v.
22 Brewster, 96 F.3d 1240, 1245 (9th Cir. 1996)).
23 Moreover, the thrust of plaintiff’s complaint is about the removal of a fostered child from
24 plaintiff’s residence. (Compl. (ECF No. 1) at 8-12.) “Government officials are required to obtain
25 prior judicial authorization before intruding on a parent’s custody of her child unless they possess
26 information at the time of the seizure that establishes ‘reasonable cause to believe that the child is
27 in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably
28 necessary to avert that specific injury.’” Mabe v. San Bernardino County, Dept. of Public Social
1 Services, 237 F.3d 1101, 1106-07 (9th Cir. 2001) (quoting Wallis v. Spencer, 202 F.3d 1126,
2 1138 (9th Cir. 2000)).
3 In this regard, “[t]he Fourteenth Amendment guarantees that parents will not be separated
4 from their children without due process of law except in emergencies.” Mabe, 237 F.3d at 1107.
5 While the “right secured by the Fourteenth Amendment ‘is not reserved for parents with full legal
6 and physical custody’ . . . . a person with only potential parental rights enjoys a liberty interest in
7 the companionship, care, and custody of his children that is ‘unambiguously lesser in
8 magnitude.’” Kirkpatrick v. County of Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (quoting
9 James v. Rowlands, 606 F.3d 646, 651 (9th Cir. 2010)).
10 Here, the complaint acknowledges that plaintiff was neither the minor’s biological nor
11 foster parent. Instead, it was plaintiff’s mother who was the minor’s foster parent. (Compl. (ECF
12 No. 1) at 8.) The complaint disputes the decisions of the “Courts and all other defendants”
13 finding that plaintiff had no rights with respect to the minor. (Id. at 13.) The complaint alleges
14 that this conclusion is disputed by law that is “well-developed and articulated[.]” (Id.) This
15 conclusion is unsupported by citation to case law and appears questionable. See Huk v. County
16 of Santa Barbara, 650 Fed. Appx. 365, 367 (9th Cir. 2016) (“Even if it can be established that
17 Huk and Raff were deprived of their custody of their foster child through allegedly deceptive
18 means and without any opportunity to contest the validity or reason behind the removal, they
19 have not and can not demonstrate that their custody of their foster child was a liberty interest
20 protected by the Due Process Clause.”).
21 C. Immunity
22 It appears from the allegations found in the complaint that several defendants may be
23 immune. In this regard, the complaint names as defendants two judges. (Compl. (ECF No. 1) at
24 1.) However, judges are generally absolutely immune from civil liability for actions taken in their
25 judicial capacity. Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Moreover, “[a]bsolute judicial
26 immunity is not reserved solely for judges, but extends to nonjudicial officers for ‘all claims
27 relating to the exercise of judicial functions.’” In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002)
28 (quoting Burns v. Reed, 500 U.S. 478, 499 (1991) (Scalia, J., concurring in part and dissenting in
1 part)). In this regard, judicial personnel “have absolute quasi-judicial immunity from damages for
2 civil rights violations when they perform tasks that are an integral part of the judicial process.”
3 Mullis v. U.S. Bankruptcy Court for Dist. of Nevada, 828 F.2d 1385, 1390 (9th Cir. 1987).
4 The complaint also names as defendants several social workers. (Compl. (ECF No. 1) at
5 5.) “[S]ocial workers are entitled to absolute immunity for the initiation and pursuit of
6 dependency proceedings, including their testimony offered in such proceedings.” Mabe, 237 F.3d
7 at 1109. And “social workers enjoy absolute, quasi-judicial immunity when making post-
8 adjudication custody decisions pursuant to a valid court order.” Id. (quotation omitted).
9 III. Leave to Amend
10 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned
11 has carefully considered whether plaintiff may amend the complaint to state a claim upon which
12 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,
13 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d
14 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
15 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the
16 court does not have to allow futile amendments).
17 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
18 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
19 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
20 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
21 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
22 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
23 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
24 1988)).
25 Here, given the vague and conclusory nature of the complaint’s allegations the
26 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile.
27 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an
28 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended
1 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint
2 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
3 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While
4 legal conclusions can provide the complaint’s framework, they must be supported by factual
5 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from
6 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).
7 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
8 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
9 in itself without reference to prior pleadings. The amended complaint will supersede the original
10 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
11 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
12 and identified in the body of the complaint, and each claim and the involvement of each
13 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
14 must also include concise but complete factual allegations describing the conduct and events
15 which underlie plaintiff’s claims.
16 CONCLUSION
17 Accordingly, IT IS HEREBY ORDERED that:
18 1. The complaint filed September 5, 2019 (ECF No. 1) is dismissed with leave to
19 amend.1
20 2. Within sixty days from the date of this order, an amended complaint shall be filed that
21 cures the defects noted in this order and complies with the Federal Rules of Civil Procedure and
22 the Local Rules of Practice.2 The amended complaint must bear the case number assigned to this
23 action and must be titled “Amended Complaint.”
24 ////
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1 Plaintiff need not file another application to proceed in forma pauperis at this time unless
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.
1 3. Failure to comply with this order in a timely manner may result in a recommendation
2 that this action be dismissed.
3 DATED: March 26, 2020 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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