“Dismissal of a pro se complaint without leave to 16 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 17 cured by amendment.”
How later courts described this case
- “Dismissal of a pro se complaint without leave to 16 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 17 cured by amendment.”
- “the statute provides that a tort claim ‘shall be forever 28 barred’ unless it is presented ‘within two years after such claim accrues’”
- holding that while leave to amend shall 10 be freely given, the court does not have to allow futile amendments
- “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”
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
10
11 JONATHAN LYNN NOELDNER, No. 2:19-cv-0775 KJM DB PS
ANGELA TEARLE NOELDNER,
12
13 Plaintiffs, ORDER
14 v.
15 UNITED STATES GOVERNMENT, et
al.,
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17 Defendants.
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19 Plaintiffs Jonathan Noeldner and Angela Noeldner are proceeding in this action pro se.
20 This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28
21 U.S.C. § 636(b)(1). Pending before the court are plaintiffs’ amended complaint and motions to
22 proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 4-6.) Therein, plaintiffs
23 complain about damages resulting from a forest fire.
24 The court is required to screen complaints brought by parties proceeding in forma
25 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
26 2000) (en banc). Here, plaintiffs’ amended complaint is deficient. Accordingly, for the reasons
27 stated below, plaintiffs’ amended complaint will be dismissed and plaintiffs will be granted
28 further leave to file a second amended complaint.
1 I. Plaintiffs’ Applications to Proceed In Forma Pauperis
2 Plaintiffs’ in forma pauperis applications make 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. Plaintiffs’ Amended Complaint
11 Here, plaintiffs’ amended complaint alleges that defendant United States Forest Service
12 was responsible for a fire damaging plaintiffs’ property. (Am. Compl. (ECF No. 4) at 6.) An
13 action based on the negligent or wrongful conduct of a government employee must be brought
14 against the United States as a claim pursuant to the Federal Tort Claims Act, (“FTCA”). 28
15 U.S.C. §§ 2671-2680; see also Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir.
16 1998) (“the United States is the only proper party defendant in an FTCA action”). The FTCA
17 “vests the federal district courts with exclusive jurisdiction over suits arising from the negligence
18 of Government employees.” Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992).
19 However, “[t]he timely filing of an administrative claim is a jurisdictional prerequisite to
20 the bringing of a suit under the FTCA and, as such, should be affirmatively alleged in the
21 complaint.” Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). Here, the amended
22 complaint does not allege that plaintiffs filed an administrative claim in connection with this
23 action.
24 Plaintiffs are cautioned that “[a] claimant must present a tort claim against the United
25 States in writing to the appropriate Federal agency within two years after injury.” Krueger v.
26 Saiki, 19 F.3d 1285, 1286 (8th Cir. 1994) (citing 28 U.S.C. § 2401(b)); see also Hensley v. U.S.,
27 531 F.3d 1052, 1056 (9th Cir. 2008) (“the statute provides that a tort claim ‘shall be forever
28 barred’ unless it is presented ‘within two years after such claim accrues’”). “The general rule,
1 within the meaning of the FTCA is that a tort claim accrues at the time of the plaintiff’s injury[.]”
2 Attallah v. U.S., 955 F.2d 776, 779 (1st Cir. 1992).
3 III. Leave to Amend
4 For the reasons stated above, plaintiffs’ amended complaint must be dismissed. The
5 undersigned has carefully considered whether plaintiffs may further amend the complaint to state
6 a claim upon which relief can be granted. “Valid reasons for denying leave to amend include
7 undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan
8 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath
9 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall
10 be freely given, the court does not have to allow futile amendments).
11 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
12 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
13 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
14 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
15 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
16 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
17 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
18 1988)).
19 Given the defect noted above the undersigned cannot yet say that it appears beyond doubt
20 that leave to amend would be futile. Plaintiffs’ amended complaint will therefore be dismissed,
21 and plaintiffs will be granted leave to file a second amended complaint. Plaintiffs are cautioned,
22 however, that if plaintiffs elect to file a second amended complaint “the tenet that a court must
23 accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
24 Threadbare recitals of the elements of a cause of action, supported by mere conclusory
25 statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the
26 complaint’s framework, they must be supported by factual allegations.” Id. at 679. Those facts
27 must be sufficient to push the claims “across the line from conceivable to plausible[.]” Id. at 680
28 (quoting Twombly, 550 U.S. at 557).
1 Plaintiffs are also reminded that the court cannot refer to a prior pleading in order to make
2 an amended complaint complete. Local Rule 220 requires that any amended complaint be
3 complete in itself without reference to prior pleadings. The second amended complaint will
4 supersede the amended complaint just as the amended complaint superseded the original
5 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in a second amended
6 complaint, just as if it were the initial complaint filed in the case, each defendant must be listed in
7 the caption and identified in the body of the complaint, and each claim and the involvement of
8 each defendant must be sufficiently alleged. Any amended complaint which plaintiffs may elect
9 to file must also include concise but complete factual allegations describing the conduct and
10 events which underlie plaintiffs’ claims.
11 CONCLUSION
12 Accordingly, IT IS HEREBY ORDERED that:
13 1. The amended complaint filed October 25, 2019 (ECF No. 4) is dismissed with leave to
14 amend.1
15 2. Within sixty days from the date of this order, a second amended complaint shall be
16 filed that cures the defects noted in this order and complies with the Federal Rules of Civil
17 Procedure and the Local Rules of Practice.2 The second amended complaint must bear the case
18 number assigned to this action and must be titled “Second Amended Complaint.”
19 3. Failure to comply with this order in a timely manner may result in a recommendation
20 that this action be dismissed.
21 DATED: April 7, 2020 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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1 Plaintiffs need not file another application to proceed in forma pauperis at this time unless
plaintiffs’ financial condition has improved since the last such application was submitted.
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2 Alternatively, if plaintiffs no longer wish to pursue this action plaintiffs may file a notice of
28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.