# (PS) Zhai v. Markstein Beverage Company

> District Court, E.D. California · March 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10018096

## Case

- **Court:** District Court, E.D. California
- **Decided:** March 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10018096

## How later opinions describe it (automated extraction)

- holding that while leave to amend shall be freely given, the 14 court does not have to allow futile amendments

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 ANN ZHAI, No. 2:19-cv-1980 JAM DB PS
12 Plaintiff,
13 v. ORDER
14 MARKSTEIN BEVERAGE COMPANY,
et al.,
15
16 Defendants.
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18 Plaintiff Ann Zhai proceeding in this action pro se. This matter was referred to the
19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending
20 before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28
21 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about being injured in a traffic
22 accident.
23 The court is required to screen complaints brought by parties proceeding in forma
24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
25 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated
26 below, plaintiff’s complaint will be dismissed and plaintiff will be granted leave to file an
27 amended complaint.
28 ////
1 I. Plaintiff’s Application to Proceed In Forma Pauperis
2 Plaintiff’s in forma pauperis application makes the financial showing required by 28
3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma
4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny
5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed
6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d
7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th
8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th
9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed
10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous
11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the
12 District Court to examine any application for leave to proceed in forma pauperis to determine
13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit,
14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).
15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of
16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to
17 state a claim on which relief may be granted, or seeks monetary relief against an immune
18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an
19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.
20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a
21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the
22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to
24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
26 true the material allegations in the complaint and construes the allegations in the light most
27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.
28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true
3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
5 The minimum requirements for a civil complaint in federal court are as follows:
6 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
7 jurisdiction depends . . . , (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
8 judgment for the relief the pleader seeks.
9 Fed. R. Civ. P. 8(a).
10 II. Plaintiff’s Complaint
11 Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing
12 that plaintiff is entitled to relief. In this regard, the complaint alleges that on October 10, 2017, a
13 driver for defendant Markstein Beverage Company and plaintiff were involved in a traffic
14 accident. (Compl. (ECF No. 1) at 1.) “Since then, a whole host of legal issues from this incident
15 have been uncovered.” (Id.) The complaint proceeds to identify nine defendants ranging from
16 the driver of the vehicle, the healthcare provider responsible for plaintiff’s medical care, the tire
17 manufacturer, the vehicle manufacturer, gasoline refineries, and the United States of America.
18 Over 65 pages the complaint asserts hundreds of causes of action against the defendants in a
19 vague and conclusory manner.
20 For example, the complaint alleges that defendant Bridgestone was “negligent by
21 drugging and/or poisoning with a whole host of toxins and carcinogens[.]” (Id. at 51.) That
22 “Refineries, distributors, and sellers, are negligent by drugging and/or poisoning living human
23 beings with MMT-NO via consumer mobile sources[.]” (Id. at 39.) That defendant Dignity
24 Healthcare was “criminally or recklessly negligent by preauthorizing, billing, and collecting
25 payment in advance by placing accounting/finance person stationing in the ER with patients[.]”
26 (Id. at 10.) The complaint is composed entirely of these vague and conclusory allegations without
27 providing any factual allegations in support.
28 ////
1 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
2 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
3 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
4 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
5 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
6 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
7 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
8 557). A plaintiff must allege with at least some degree of particularity overt acts which the
9 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
10 The complaint also alleges that the “United States of America is named as a co-defendant
11 based on [the] Federal Torts Claim Act.” (Compl. (ECF No. 1) at 4.) An action based on the
12 negligent or wrongful conduct of a government employee must be brought against the United
13 States as a claim pursuant to the Federal Tort Claims Act, (“FTCA”). 28 U.S.C. §§ 2671-2680;
14 see also Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (“the United States
15 is the only proper party defendant in an FTCA action”). The FTCA “vests the federal district
16 courts with exclusive jurisdiction over suits arising from the negligence of Government
17 employees.” Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992).
18 However, “[t]he timely filing of an administrative claim is a jurisdictional prerequisite to
19 the bringing of a suit under the FTCA and, as such, should be affirmatively alleged in the
20 complaint.” Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). Here, the complaint does
21 not allege that plaintiff filed an administrative claim in connection with this action.
22 Moreover, “[a] claimant must present a tort claim against the United States in writing to
23 the appropriate Federal agency within two years after injury.” Krueger v. Saiki, 19 F.3d 1285,
24 1286 (8th Cir. 1994) (citing 28 U.S.C. § 2401(b)); see also Hensley v. U.S., 531 F.3d 1052, 1056
25 (9th Cir. 2008) (“the statute provides that a tort claim ‘shall be forever barred’ unless it is
26 presented ‘within two years after such claim accrues’”). “The general rule, within the meaning of
27 the FTCA is that a tort claim accrues at the time of the plaintiff’s injury[.]” Attallah v. U.S., 955
28 F.2d 776, 779 (1st Cir. 1992).
1 Here, although the complaint does not allege any factual allegations with respect to the
2 FTCA, it does allege that the government granted “fuel additive certificate waivers[.]” (Id.)
3 Those waivers were likely granted many years before this action commenced. Plaintiff is
4 cautioned that the FTCA explicitly states that a “tort claim against the United States shall be
5 forever barred unless it is presented in writing to the appropriate Federal agency within two years
6 after such claim accrues[.]” 28 U.S.C. § 2401(b) (emphasis added).
7 III. Leave to Amend
8 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned
9 has carefully considered whether plaintiff may amend the complaint to state a claim upon which
10 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,
11 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d
12 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
13 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the
14 court does not have to allow futile amendments).
15 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
16 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
17 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
18 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
19 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
20 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
21 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
22 1988)).
23 Here, given the vague and conclusory nature of the complaint’s allegations the
24 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile.
25 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an
26 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended
27 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint
28 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
1 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While
2 legal conclusions can provide the complaint’s framework, they must be supported by factual
3 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from
4 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).
5 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
6 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
7 in itself without reference to prior pleadings. The amended complaint will supersede the original
8 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
9 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
10 and identified in the body of the complaint, and each claim and the involvement of each
11 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
12 must also include concise but complete factual allegations describing the conduct and events
13 which underlie plaintiff’s claims.
14 CONCLUSION
15 Accordingly, IT IS HEREBY ORDERED that:
16 1. The complaint filed September 30, 2019 (ECF No. 1) is dismissed with leave to
17 amend.1
18 2. Within sixty days from the date of this order, an amended complaint shall be filed that
19 cures the defects noted in this order and complies with the Federal Rules of Civil Procedure and
20 the Local Rules of Practice.2 The amended complaint must bear the case number assigned to this
21 action and must be titled “Amended Complaint.” The amended complaint shall not exceed
22 twenty-five pages in length.
23 ////
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 30, 2020 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10018096. Public record. Not legal advice.