“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.”
How later courts described this case
- “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.”
- “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 MAGDALINA C. CIURAR, No. 2:20-cv-2089 JAM DB PS
12 Plaintiff,
13 v. ORDER
14 STATE OF CALIFORNIA, et al.,
15 Defendants.
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17 Plaintiff Magdalina C. Ciurar is proceeding in this action pro se. This matter was referred
18 to 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 & 2.) Therein, plaintiff seeks reinstatement of a State of California
21 issued pharmacy technician license.
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 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
1 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
2 The minimum requirements for a civil complaint in federal court are as follows:
3 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
4 jurisdiction depends . . . , (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
5 judgment for the relief the pleader seeks.
6 Fed. R. Civ. P. 8(a).
7 II. Plaintiff’s Complaint
8 Review of plaintiff’s complaint finds it is defective in several respects. In this regard, the
9 complaint alleges that this action is brought “pursuant to California Business and Professions
10 Code § 4060” and the “Fair Labor Standards Act,” but does not allege a specific cause of action
11 or facts in support of a stated cause of action. Although the Federal Rules of Civil Procedure
12 adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff’s
13 claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R.
14 Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A
15 pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of cause of
16 action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of
17 ‘further factual enhancements.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555,
18 557). A plaintiff must allege with at least some degree of particularity overt acts which the
19 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
20 From the allegations found in the complaint it appears that plaintiff wishes to challenge
21 the decision of the California “State Pharmacy Board” to revoke plaintiff’s Pharmacy Technician
22 License. (Compl. (ECF No. 1) at 4-5.) “Courts have long recognized that licenses which enable
23 one to pursue a profession or earn a livelihood are protected property interests for purposes of a
24 Fourteenth Amendment analysis.” Jones v. City of Modesto, 408 F.Supp.2d 935, 950 (E.D. Cal.
25 2005). “The Fourteenth Amendment protects individuals against the deprivation of liberty or
26 property by the government without due process. A section 1983 claim based upon procedural
27 due process thus has three elements: (1) a liberty or property interest protected by the
28 Constitution; (2) a deprivation of the interest by the government; (3) lack of process.” Portman v.
1 County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). A plaintiff may state a substance due
2 process claim where they show “they are unable to pursue an occupation . . . and, second, that this
3 inability is due to actions that substantively were ‘clearly arbitrary and unreasonable, having no
4 substantial relation to the public health, safety, morals, or general welfare.’” Wedges/Ledges of
5 California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 65 (9th Cir. 1994) (quoting FDIC v.
6 Henderson, 940 F.2d 465, 474 (9th Cir. 1991)).
7 However, it appears that the only defendants named in the complaint are the State of
8 California or departments of the State of California. In general, the Eleventh Amendment bars
9 suits against a state, absent the state’s affirmative waiver of its immunity or congressional
10 abrogation of that immunity. Pennhurst v. Halderman, 465 U.S. 89, 98-99 (1984); Simmons v.
11 Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Yakama Indian Nation
12 v. State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999); see also Krainski v.
13 Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010)
14 (“The Eleventh Amendment bars suits against the State or its agencies for all types of relief,
15 absent unequivocal consent by the state.”). “[T]he Eleventh Amendment [also] bars a federal
16 court from hearing claims by a citizen against dependent instrumentalities of the state.” Cerrato
17 v. San Francisco Community College Dist., 26 F.3d 968, 972-73 (9th Cir. 1994).
18 To be a valid waiver of sovereign immunity, a state’s consent to suit must be
19 “unequivocally expressed in the statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996); see also
20 Pennhurst, 465 U.S. at 99; Yakama Indian Nation, 176 F.3d at 1245. “[T]here can be no consent
21 by implication or by use of ambiguous language.” United States v. N.Y. Rayon Importing Co.,
22 329 U.S. 654, 659 (1947). Courts must “indulge every reasonable presumption against waiver,”
23 Coll. Sav. Bank v. Florida Prepaid, 527 U.S. 666, 682 (1999), and waivers “must be construed
24 strictly in favor of the sovereign and not enlarged beyond what the [statutory] language requires.”
25 United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citations, ellipses, and internal
26 quotation marks omitted). “To sustain a claim that the Government is liable for awards of
27 monetary damages, the waiver of sovereign immunity must extend unambiguously to such
28 monetary claims.” Lane, 518 U.S. at 192.
1 The Ninth Circuit has recognized that “[t]he State of California has not waived its
2 Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court, and
3 the Supreme Court has held that § 1983 was not intended to abrogate a State’s Eleventh
4 Amendment immunity.” Brown v. California Dept. of Corrections, 554 F.3d 747, 752 (9th Cir.
5 2009) (quoting Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999)).
6 III. Leave to Amend
7 For the reasons stated above plaintiff’s complaint must be dismissed. The undersigned
8 has carefully considered whether plaintiff may amend the complaint to state a claim upon which
9 relief can be granted and over which the court would have jurisdiction. “Valid reasons for
10 denying leave to amend include undue delay, bad faith, prejudice, and futility.” California
11 Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also
12 Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)
13 (holding that while leave to amend shall be freely given, the court does not have to allow futile
14 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, it appears plaintiff may be able to amend the complaint to allege a claim against an
24 individual in their official capacity for injunctive relief. See Dittman v. California, 191 F.3d
25 1020, 1029 (9th Cir. 1999) (“In the end, Plaintiff’s only viable claim is one for prospective
26 injunctive relief against defendant Nielsen in her official capacity for allegedly violating the due
27 process clause of the Fourteenth Amendment.”). Plaintiff’s complaint will therefore be
28 dismissed, and plaintiff will be granted leave to file an amended complaint. Plaintiff is cautioned,
1 however, that if plaintiff elects to file an amended complaint “the tenet that a court must accept as
2 true all of the allegations contained in a complaint is inapplicable to legal conclusions.
3 Threadbare recitals of the elements of a cause of action, supported by mere conclusory
4 statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the
5 complaint’s framework, they must be supported by factual allegations.” Id. at 679. Those facts
6 must be sufficient to push the claims “across the line from conceivable to plausible[.]” Id. at 680
7 (quoting Twombly, 550 U.S. at 557).
8 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
9 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
10 in itself without reference to prior pleadings. The amended complaint will supersede the original
11 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
12 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
13 and identified in the body of the complaint, and each claim and the involvement of each
14 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
15 must also include concise but complete factual allegations describing the conduct and events
16 which underlie plaintiff’s claims.
17 CONCLUSION
18 Accordingly, IT IS HEREBY ORDERED that:
19 1. The complaint filed October 19, 2020 (ECF No. 1) is dismissed with leave to
20 amend.1
21 2. Within twenty-eight days from the date of this order, an amended complaint shall be
22 filed that cures the defects noted in this order and complies with the Federal Rules of Civil
23 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number
24 assigned to this action and must be titled “Amended Complaint.”
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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 31, 2021 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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