(PS) Smith v. Counts

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 TREVOR L. SMITH, No. 2:19-cv-2038 KJM DB PS

12 Plaintiff,

13 v. ORDER

14 PAUL COUNTS, et al.,

15 Defendants,

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17 Plaintiff Trevor Smith is proceeding in this action pro se. This matter was referred to the

18 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 will be granted leave to file an amended complaint.

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 Here, plaintiff’s complaint alleges that this action is brought by plaintiff Trevor Smith and

8 plaintiff “AGS, a minor child[.]” (Compl. (ECF No. 1) at 1.) The right to represent oneself pro

9 se is personal to the plaintiff and does not extend to other parties. Simon v. Hartford Life, Inc.,

10 546 F.3d 661, 664 (9th Cir. 2008); see also Russell v. United States, 308 F.2d 78, 79 (9th Cir.

11 1962) (“A litigant appearing in propria persona has no authority to represent anyone other than

12 himself.”) Thus, “a parent or guardian cannot bring an action on behalf of a minor child without

13 retaining a lawyer.” Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997).

14 III. Leave to Amend

15 For the reasons stated above, plaintiff will be granted leave to file an amended complaint.

16 Plaintiff is cautioned, however, that if plaintiff elects to file an amended complaint “the tenet that

17 a court must accept as true all of the allegations contained in a complaint is inapplicable to legal

18 conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

19 conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While legal conclusions can

20 provide the complaint’s framework, they must be supported by factual allegations.” Id. at 679.

21 Those facts must be sufficient to push the claims “across the line from conceivable to

22 plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).

23 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an

24 amended complaint complete. Local Rule 220 requires that any amended complaint be complete

25 in itself without reference to prior pleadings. The amended complaint will supersede the original

26 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,

27 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption

28 and identified in the body of the complaint, and each claim and the involvement of each

1 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file

2 must also include concise but complete factual allegations describing the conduct and events

3 which underlie plaintiff’s claims.

4 CONCLUSION

5 Accordingly, IT IS HEREBY ORDERED that:

6 1. Plaintiff is granted leave to file an amended complaint within sixty (60) days of the

7 date of this order correcting the defect noted above.1

8 2. If plaintiff elects to file an amended complaint the amended complaint shall comply

9 with this order, the Federal Rules of Civil Procedure, and the Local Rules of Practice.2 The

10 amended complaint must bear the case number assigned to this action and must be titled

11 “Amended Complaint.”

12 3. Alternatively, plaintiff may comply with this order by retaining counsel to represent

13 the minor plaintiff within sixty (60) days of the date of this order.

14 4. Plaintiff is cautioned that the failure to comply with this order in a timely manner may

15 result in a recommendation that this action be dismissed.

16 DATED: March 30, 2020 /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

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.