Goins v. Sacramento County, et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 6/7/11 ORDERING pltf's amended complaint 5 DISMISSED; pltf is GRANTED 30 days from the date of this order to file a second amended complaint. (Carlos, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LOUIS GOINS,
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Plaintiff,
vs.
SACRAMENTO COUNTY, et al.,
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Defendants.
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ORDER
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No. 2:11-cv-0475 LKK KJN (TEMP) PS
Plaintiff is proceeding in this action without counsel or “pro se” and in forma
pauperis. Plaintiff has filed an amended complaint.
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The federal in forma pauperis statute authorizes federal courts to dismiss a case if
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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be
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granted, 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
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(9th 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
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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements
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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other
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words, “[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, 129
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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be
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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200
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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.
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Rhodes, 416 U.S. 232, 236 (1974).
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In the amended complaint, plaintiff alleges claims under Title VII and the
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Americans with Disabilities Act. The conduct giving rise to plaintiffs claims occurred in 1988-
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1990. Plaintiff alleges he was unable to file the instant litigation until recently. Plaintiff was
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previously advised that the allegations regarding the tolling of the statute of limitations are
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insufficient. See Stoll v. Runyon, 165 F.3d 1238 (9th Cir. 1999) (equitable tolling applies when
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plaintiff is prevented from asserting a claim by wrongful conduct on the part of the defendant, or
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when extraordinary circumstances beyond the plaintiff’s control made it impossible to file timely
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claim). The amended complaint fails to cure the deficiencies evident in the original complaint.
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The court notes that in plaintiff’s application to proceed in forma pauperis, plaintiff stated he was
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employed at a golf course for a ten-week period in 2010, which suggests plaintiff has not
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continuously been under such a mental impairment that he was precluded from filing the instant
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action at an earlier time. In the amended complaint, plaintiff also alleges that he took actions in
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2009 to investigate his claims and filed a complaint with the Department of Fair Employment
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and Housing in 1994. There is no explanation as to why plaintiff waited until February 22, 2011,
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to file the instant action. Moreover, with respect to exhaustion of administrative remedies,
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plaintiff submits a right to sue letter issued in 1990 allegedly for a complaint filed with the
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Department of Fair Employment and Housing in 1994. Plaintiff does not explain how he could
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be issued a right to sue letter four years before filing a complaint with the administrative agency.
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Because of these deficiencies, the court will dismiss the amended complaint but grant one final
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opportunity to amend the complaint.
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If plaintiff chooses to amend the complaint, plaintiff must set forth the
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jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil
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Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted
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in a deprivation of plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
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Plaintiff must also set forth allegations sufficient to toll the statute of limitations and must
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demonstrate exhaustion of administrative remedies.
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in
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order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an
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amended complaint be complete in itself without reference to any prior pleading. This is
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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original
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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an
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original complaint, each claim and the involvement of each defendant must be sufficiently
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alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff's amended complaint is dismissed; and
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2. Plaintiff is granted thirty days from the date of service of this order to file a
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second amended complaint that complies with the requirements of the Federal Rules of Civil
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Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket
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number assigned this case and must be labeled "Second Amended Complaint"; plaintiff must file
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an original and two copies of the second amended complaint; failure to file a second 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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DATED: June 7, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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