“Dismissal of a pro se complaint without leave to 1 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 2 cured by amendment.”
How later courts described this case
- “Dismissal of a pro se complaint without leave to 1 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 2 cured by amendment.”
- holding that while leave to amend shall be freely given, the 23 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 DONALD M. BIRD, No. 2:23-cv-2466 DJC DB PS
12 Plaintiff,
13 v. ORDER
14 AARON PORTER,
15 Defendant.
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17 Plaintiff Donald Bird 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 & 2.) The complaint alleges that plaintiff did not receive
21 reimbursement for travel expenses.
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 ////
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 Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing
10 that plaintiff is entitled to relief. In this regard, plaintiff’s complaint simply states that plaintiff is
11 “a Veteran who has been denied reimbursement for Vehicle Travel Expense.” (Compl. (ECF No.
12 1) at 1.) The complaint alleges no facts with respect to dates, events, or the actions of a
13 defendant. Nor does it identify a claim or plaintiff’s requested relief.
14 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
15 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
16 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
17 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
18 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
19 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
20 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
21 557). A plaintiff must allege with at least some degree of particularity overt acts which the
22 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
23 The complaint does refer to the “California ‘Jess Unrue Act.’” (Compl. (ECF No. 1) at 1.)
24 The California Unruh Civil Rights Act (“Unruh Act”) provides: “All persons within the
25 jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion,
26 ancestry, national origin, disability, medical condition, marital status, or sexual orientation are
27 entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all
28 business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). Moreover, the
1 Unruh Act provides that a “violation of the right of any individual under the federal Americans
2 with Disabilities Act of 1990 shall also constitute a violation of this section.” Cal. Civ. Code §
3 51(f) (citation and footnote omitted).
4 As expressly provided by statute, a violation of the Americans with Disabilities Act
5 (“ADA”) also constitutes a violation of the Unruh Act. Cal. Civ. Code § 51(f); see also Munson
6 v. Del Taco, Inc., 46 Cal.4th 661, 664-65 (Cal. 2009). “Congress enacted the ADA ‘to provide
7 clear, strong, consistent, enforceable standards addressing discrimination against individuals with
8 disabilities.’” Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666,
9 669 (9th Cir. 2010) (quoting 42 U.S.C. § 12101(b)(2)). “Title III of the ADA prohibits
10 discrimination in public accommodations, stating that ‘[n]o individual shall be discriminated
11 against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,
12 privileges, advantages, or accommodations of any place of public accommodation by any person
13 who owns, leases (or leases to), or operates a place of public accommodation.’” Kohler v. Bed
14 Bath & Beyond of California, LLC, 780 F.3d 1260, 1263 (9th Cir. 2015) (quoting Molski v. M.J.
15 Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)).
16 II. Leave to Amend
17 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned
18 has carefully considered whether plaintiff may amend the complaint to state a claim upon which
19 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,
20 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d
21 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
22 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the
23 court does not have to allow futile amendments).
24 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
25 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
26 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
27 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
28 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
1 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
2 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
3 1988)).
4 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend
5 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted
6 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file
7 an amended complaint “the tenet that a court must accept as true all of the allegations contained
8 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause
9 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678.
10 “While legal conclusions can provide the complaint’s framework, they must be supported by
11 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line
12 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).
13 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
14 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
15 in itself without reference to prior pleadings. The amended complaint will supersede the original
16 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
17 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
18 and identified in the body of the complaint, and each claim and the involvement of each
19 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
20 must also include concise but complete factual allegations describing the conduct and events
21 which underlie plaintiff’s claims.
22 CONCLUSION
23 Accordingly, IT IS HEREBY ORDERED that:
24 1. The complaint filed October 26, 2023 (ECF No. 1) is dismissed with leave to
25 amend.
26 2. Within twenty-eight days from the date of this order, an amended complaint shall be
27 filed that cures the defects noted in this order and complies with the Federal Rules of Civil
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1 Procedure and the Local Rules of Practice.1 The amended complaint must bear the case number
2 assigned to this action and must be titled “Amended Complaint.”
3 3. Failure to comply with this order in a timely manner may result in a recommendation
4 that this action be dismissed.
5 DATED: April 19, 2024 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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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.