“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.”
- 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 RONDELL CHRISTOPHER BULLARD, No. 2:22-cv-1535 DAD DB PS
12 Plaintiff,
13 v. ORDER
14 INTERNAL REVENUE SERVICE,
15 Defendant.
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17 Plaintiff Rondell Christopher Bullard is proceeding in this action pro se. This matter was
18 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
19 Pending before the Court are plaintiff’s complaint and motion to proceed in forma pauperis
20 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff seeks assistance in receiving
21 funds from the Internal Revenue Service.
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
13 of poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails
14 to 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 Plaintiff’s complaint fails to contain a short and plain statement of a claim showing that
10 plaintiff is entitled to relief. In this regard, the complaint alleges that when plaintiff was a minor,
11 plaintiff “was awarded a sum of money due to a doctor’s malpractice injury,” and those funds
12 were managed by plaintiff’s mother. (Compl. (ECF No. 1) at 1.) Plaintiff’s mother is now
13 deceased and plaintiff cannot obtain information about the account because plaintiff does not
14 know the account details or plaintiff’s mother’s social security number. (Id. at 1-2.) Plaintiff
15 alleges that the defendant “tax half of” the account and asks that the Court “make sure my money
16 don’t get took[.]” (Id. at 1.)
17 While it is clear that plaintiff has concerns regarding a financial account, it is entirely
18 unclear what plaintiff is alleging the defendant did wrong. In this regard, although the Federal
19 Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant
20 fair notice of the plaintiff’s claims and must allege facts that state the elements of each claim
21 plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d
22 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
23 recitation of the elements of cause of action will not do.’ Nor does a complaint suffice if it
24 tenders ‘naked assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 556
25 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at
26 least some degree of particularity overt acts which the defendants engaged in that support the
27 plaintiff’s claims. Jones, 733 F.2d at 649.
28 ////
1 Plaintiff is advised that 26 U.S.C. § 7433(a) provides that:
2 If, in connection with any collection of Federal tax with respect to a
taxpayer, any officer or employee of the Internal Revenue Service
3 recklessly or intentionally, or by reason of negligence, disregards any
provision of this title, or any regulation promulgated under this title,
4 such taxpayer may bring a civil action for damages against the United
States in a district court of the United States.
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6 However, such an action must “be brought only within 2 years after the date the right of action
7 accrues.” 26 U.S.C. § 7433(d)(3). Here, it appears from the complaint that plaintiff’s claims date
8 back to 2010. (Compl. (ECF No. 1) at 1.)
9 II. 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, the undersigned cannot yet say that it appears beyond doubt that leave to amend
26 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted
27 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file
28 an amended complaint “the tenet that a court must accept as true all of the allegations contained
1 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause
2 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678.
3 “While legal conclusions can provide the complaint’s framework, they must be supported by
4 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line
5 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).
6 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
7 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
8 in itself without reference to prior pleadings. The amended complaint will supersede the original
9 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
10 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
11 and identified in the body of the complaint, and each claim and the involvement of each
12 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
13 must also include concise but complete factual allegations describing the conduct and events
14 which underlie plaintiff’s claims.
15 CONCLUSION
16 Accordingly, IT IS HEREBY ORDERED that:
17 1. The complaint filed August 30, 2022 (ECF No. 1) is dismissed with leave to
18 amend.
19 2. Within twenty-eight days from the date of this order, an amended complaint shall be
20 filed that cures the defects noted in this order and complies with the Federal Rules of Civil
21 Procedure and the Local Rules of Practice.1 The amended complaint must bear the case number
22 assigned to this action and must be titled “Amended Complaint.”
23 ////
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26 ////
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1 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.2
3 DATED: November 1, 2022 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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2 Plaintiff need not file another application to proceed in forma pauperis at this time unless
28 plaintiff’s financial condition has improved since the last such application was submitted.