Singh, et al v. Lipworth, et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 6/1/2011 ORDERING 5 Plaintiffs' first amended complaint is DISMISSED with leave to amend; pltfs are GRANTED 30 days from the date of service of this order to file a second amended complaint that complies with the directives herein. (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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RAJ SINGH;
SUMAN MEHTA,
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Plaintiffs,
No. CIV 11-0679 JAM EFB PS
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vs.
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STEPHEN LIPWORTH;
STEVEN FINLEY,
Defendants.
ORDER
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This case, in which plaintiffs are proceeding in propria persona, was referred to the
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undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). On May 5, 2011,
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the undersigned granted plaintiffs’ request for leave to proceed in forma pauperis pursuant to 28
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U.S.C. § 1915, but dismissed plaintiffs’ complaint with leave to amend pursuant to 28 U.S.C.
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§ 1915(e)(2). Dckt. No. 4. The court noted that “[a]lthough plaintiffs’ complaint does not allege
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a federal claim or diversity of the parties, plaintiff’s civil cover sheet, which is attached to
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plaintiff’s complaint, states that the action is brought under 42 U.S.C. § 1983.” Id. at 3. The
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court then dismissed plaintiffs’ complaint since plaintiffs failed to identify proper defendants
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pursuant to § 1983 since they failed to allege that the defendants were state actors or that they
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were otherwise acting under color of law. Id. Additionally, the court noted that the plaintiffs
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failed to identify the constitutional rights the defendants allegedly violated, or explain how their
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actions resulted in the deprivation of any constitutional right. Id. at 4.
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On May 24, 2011, plaintiffs filed an amended complaint. Dckt. No. 5. The amended
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complaint, which once again only names Stephen Lipworth and Steven Finley as defendants,
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alleges that “[a] judgment was fraudulently obtained against [plaintiff] Raj Singh” and that
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Lipworth “became assignee to collect” the judgment. Id. at 2. The amended complaint alleges
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that Lipworth then foreclosed on certain real estate property owned by plaintiff Mehta for the
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satisfaction of the judgment against Singh. Id. Plaintiffs allege that Lipworth conspired with
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Finley, as well as the Sacramento Sheriff and certain Judicial Officers. Id. Plaintiffs further
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allege that they “were deprived of their property rights by Defendants acting in conjunction with
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Judicial officers” and that “[i]llegal acts of Defendants and Judicial officers circumvented the
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‘due course of justice.’” Id.
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As noted in the May 5, 2011 order, although pro se pleadings are liberally construed, see
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Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be
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dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief
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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)
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(citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s
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obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
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conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual
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allegations must be enough to raise a right to relief above the speculative level on the assumption
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that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate
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based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to
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support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th
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Cir. 1990).
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In reviewing a complaint under this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740
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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in
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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must
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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule
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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the
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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the
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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)
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(citing Conley v. Gibson, 355 U.S. 41 (1957)).
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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only
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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins.
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Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 &
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1332, confer “federal question” and “diversity” jurisdiction, respectively. Federal question
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jurisdiction requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2)
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allege a “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or
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(3) be authorized by a federal statute that both regulates a specific subject matter and confers
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federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity
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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the
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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World
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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction
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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys
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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
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Here, plaintiffs’ amended complaint still does not allege a federal claim or diversity of
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the parties. Additionally, the amended complaint still does not allege that either of the named
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defendants are proper defendants under 42 U.S.C. § 1983. As noted in the May 5, 2011 order, in
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order to state a claim under § 1983, plaintiffs must allege: (1) the violation of a federal
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constitutional or statutory right; and (2) that the violation was committed by a person acting
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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiffs’ amended
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complaint still does not allege that the named defendants were state actors or that they were
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otherwise acting under color of law. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d
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826, 835 (9th Cir. 1999) (The party charged with a constitutional deprivation under § 1983 must
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be a person who may fairly be said to be a governmental actor) (citation and quotations omitted).
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Section “1983 excludes from its reach merely private conduct, no matter how discriminatory or
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wrong.” Id. (citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation
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and internal quotation marks omitted). Furthermore, plaintiffs still fail to identify the
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constitutional rights the defendants allegedly violated, or explain how their actions resulted in
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the deprivation of any constitutional right.
Therefore, plaintiffs’ amended complaint will once again be dismissed. However,
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plaintiffs are granted leave to file a second amended complaint and name proper governmental
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actors, if any can properly be listed as defendants. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th
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Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to
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correct any deficiency in their complaints). Should plaintiffs choose to file a second amended
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complaint, they shall clearly set forth the allegations against each defendant and shall specify a
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basis for this court’s subject matter jurisdiction.
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Additionally, plaintiffs are informed that the court cannot refer to prior pleadings in order
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to make an amended complaint complete. Local Rule 220 requires that an amended complaint
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be complete in itself. This is because, as a general rule, an amended complaint supersedes the
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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once
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plaintiffs file a second amended complaint, the first amended complaint no longer serves any
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function in the case. Therefore, “a plaintiff waives all causes of action alleged in the original
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complaint which are not alleged in the amended complaint,” London v. Coopers & Lybrand, 644
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F.2d 811, 814 (9th Cir. 1981), and defendants not named in an amended complaint are no longer
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defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
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Finally, the court cautions plaintiffs that failure to comply with the Federal Rules of Civil
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Procedure, this court’s Local Rules, or any court order may result in a recommendation that this
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action be dismissed. See Local Rule 110.
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Accordingly, IT IS ORDERED that:
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1. Plaintiffs’ first amended complaint is dismissed with leave to amend.
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2. Plaintiffs are granted thirty days from the date of service of this order to file a second
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amended complaint that complies with the directives herein. The amended complaint must bear
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the docket number assigned to this case and must be labeled “Second Amended Complaint.”
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Plaintiffs must file an original and two copies of the second amended complaint. Failure to
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timely file a second amended complaint in accordance with this order will result in a
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recommendation this action be dismissed.
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DATED: June 1, 2011.
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