Graves v. Berrien et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 6/21/2011 ORDERING Plaintiff's 3rd amended complaint is DISMISSED; Pltf is GRANTED 30 days from the date of service of this order to file a 4th amended complaint that complies with the requirements of the FRCP, and the LR of Practice; pltf's motions 14 , 15 , 18 , 19 , 20 , 22 , 23 , 24 , 25 , 26 are DENIED; pltf's future filings shall therefore be limited. (Reader, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PETER GRAVES,
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Plaintiff,
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vs.
JACQUELINE BERRIEN, et al.,
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Defendants.
ORDER
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Plaintiff is proceeding in this action pro se and in forma pauperis. This proceeding was
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No. CIV S-10-3015 MCE EFB (TEMP) PS
referred to this court by Local Rule 302(c)(21).
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Plaintiff’s original complaint was filed on November 9, 2010. Plaintiff filed an amended
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complaint on November 12, 2010. Three days later, plaintiff filed a second amended complaint.
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The second amended complaint was reviewed by the court and dismissed with leave to amend.
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See 28 U.S.C. § 1915(e)(2). Plaintiff has now filed a third amended complaint.
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the
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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,
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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915(e)(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327.
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In order to avoid dismissal for failure to state a claim a complaint must contain more than
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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a
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claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.
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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
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129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can
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be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197,
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2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer
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v. Rhodes, 416 U.S. 232, 236 (1974).
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The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is
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unable to determine whether the current action is frivolous or fails to state a claim for relief. The
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court has determined that the complaint does not contain a short and plain statement as required
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by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a
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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones
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v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at
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least some degree of particularity overt acts which defendants engaged in that support plaintiff’s
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claim. Id. Because plaintiff had failed to comply with the requirements of Fed. R. Civ. P.
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8(a)(2), the second amended complaint was dismissed and leave to amend was granted. The
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third amended complaint fails to cure the deficiencies evident in the second amended complaint.
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The court will grant one final opportunity to amend the complaint.
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Plaintiff is again cautioned that he must set forth the jurisdictional grounds upon which
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the court’s jurisdiction depends. Fed. R. Civ. P. 8(a). Further, plaintiff must demonstrate how
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the conduct complained of has resulted in a deprivation of plaintiff’s federal rights. See Ellis v.
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Cassidy, 625 F.2d 227 (9th Cir. 1980).
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In this action, plaintiff seeks damages for allegedly wrongful actions taken by employees
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of the Equal Employment Opportunity Commission (“EEOC”), the agency itself, and the United
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States of America. Under the Federal Torts Claim Act (“FTCA”), an aggrieved party must file
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an adminstrative claim with the appropriate federal agency before commencing litigation against
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the United States. 28 U.S.C. § 2675(a). This requirement is jurisdictional and cannot be waived.
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Marley v. United States, 548 F.3d 1286, 1287 (9th Cir. 2008). It does not appear from plaintiff’s
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numerous pleadings that plaintiff has exhausted his statutorily-required administrative remedies.
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Any amended complaint must address this deficiency.
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
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make plaintiff's amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. This is because, as a
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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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Plaintiff has filed ten motions since March 10, 2011. Many of the pleadings are not
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pertinent to issues before the court, are duplicative, or not properly noticed for hearing. On
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March 10, 2011, plaintiff filed two motions addressing a notice of related cases filed by
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defendant United States of America. Whether the actions are related is a matter to be determined
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by the district court, and apart from the filing of a notice of related cases pursuant to Local Rule
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123, pleadings or briefs on the question are unnecessary. Plaintiff’s eight other motions, filed in
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the course of several days spanning a little over a month, are motions styled as motions to “add
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newly discovery [sic] exhibit.” Exhibits may be attached to a complaint, may be submitted in
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connection with a motion for summary judgment, or may be presented at trial. Plaintiff’s
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“motions” are not properly noticed for hearing, do not pertain to pending discovery, and appear
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to be irrelevant to these proceedings. Plaintiff’s motions will accordingly be denied and an order
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shall issue limiting plaintiff’s filings.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s third amended complaint is dismissed.
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2. Plaintiff is granted thirty days from the date of service of this order to file a fourth
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amended complaint that complies with the requirements of the Federal Rules of Civil Procedure,
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and the Local Rules of Practice; the fourth amended complaint must bear the docket number
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assigned this case and must be labeled “Fourth Amended Complaint”; plaintiff must file an
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original and two copies of the fourth amended complaint; failure to file a fourth amended
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complaint in accordance with this order will result in a recommendation that this action be
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dismissed.
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3. Plaintiff’s motions (Dckt. Nos. 14, 15, 18, 19, 20, 22, 23, 24, 25, 26) are denied.
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4. The multiplicity of plaintiff’s filings are a burden on both the court and defendants
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and impede the proper prosecution of this action. Plaintiff’s future filings shall therefore be
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limited. Plaintiff may only file the following documents:
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a. Proofs of service regarding summons;
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b. One opposition to any motion filed by defendants (and clearly titled as such);
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c. Only one motion pending at any time. Such motion must be properly noticed
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for hearing. Plaintiff shall comply with Local Rule 230 for any future motion and he is limited
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to one memorandum of points and authorities in support of the motion and one reply to any
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opposition; and
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d. One set of objections to any findings and recommendations.
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Failure to comply with this order shall result in improperly documents being
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stricken from the record and may result in a recommendation that this action be dismissed.
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DATED: June 21, 2011.
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