Thomas v. The Hilton Corporation et al
Filing
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ORDER signed by Magistrate Judge Dale A. Drozd on 11/10/2011 GRANTING plaintiff's 2 Motion to Proceed In Forma Pauperis. The 1 Complaint is DISMISSED and plaintiff has 28 day from date of this Order to file an Amended Complaint that cures defects noted. (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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B. KIM THOMAS,
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Plaintiff,
No. CIV S-11-1556 MCE DAD PS
v.
THE HILTON CORPORATION
and EMBASSY SUITES,
ORDER
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Defendants.
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Plaintiff, B. Kim Thomas, proceeding in this action pro se, has requested leave to
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proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter was referred to the
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undersigned in accordance with Local Rule 72-302(c)(21) and 28 U.S.C. § 636(b)(1).
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Plaintiff has submitted an in forma pauperis application that makes the showing
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required by 28 U.S.C. § 1915(a)(1). Plaintiff’s request for leave to proceed in forma pauperis
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will therefore be granted.
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The determination that plaintiff may proceed in forma pauperis does not complete
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the inquiry required by the statutes. Under 28 U.S.C. § 1915(e)(2), the court must dismiss the
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complaint at any time if the court determines that the pleading is frivolous or malicious, fails to
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state a claim on which relief may be granted, or seeks monetary relief against an immune
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defendant. A complaint is legally frivolous when it lacks an arguable basis 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). Under this standard, a court must dismiss a complaint as frivolous where it is
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based on an indisputably meritless legal theory or where the factual contentions are clearly
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baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
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To state a claim on which relief may be granted, the plaintiff must allege “enough
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facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court
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accepts as true the material allegations in the complaint and construes the allegations in the light
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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg.
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Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242,
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1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as
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true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
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The minimum requirements for a civil complaint in federal court are as follows:
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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
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks.
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Fed. R. Civ. P. 8(a).
Here, plaintiff’s filing is deficient in several respects. First, a civil action is
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commenced by filing a complaint with the court. Fed. R. Civ. P. 3. Plaintiff has not filed a
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complaint, but instead has submitted to the court only a copy of an email from plaintiff to the
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Hilton Corporation. Nonetheless, the Clerk of the Court has construed plaintiff’s filing as
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complaint and, out of an abundance of caution, the court will do so as well.
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Second, plaintiff’s complaint does not contain a short and plain statement of the
grounds upon which the court’s jurisdiction depends. Federal courts are courts of limited
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jurisdiction and may adjudicate only those cases authorized by federal law. Kokkonen v.
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Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37
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(1992).1 “Federal courts are presumed to lack jurisdiction, ‘unless the contrary appears
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affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting
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Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)). Because of the presumptive
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lack of jurisdiction, a plaintiff’s complaint is required to contain “a short and plain statement of
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the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a). Lack of subject matter jurisdiction
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may be raised by the court at any time during the proceedings. Attorneys Trust v. Videotape
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Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). The burden of establishing
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jurisdiction rests upon plaintiff as the party asserting jurisdiction. Kokkonen, 511 U.S. at 377;
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see also Hagans v. Lavine, 415 U.S. 528, 543 (1974) (acknowledging that a claim may be
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dismissed for lack of jurisdiction if it is “so insubstantial, implausible, . . . or otherwise
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completely devoid of merit as not to involve a federal controversy within the jurisdiction of the
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District Court”); Bell v. Hood, 327 U.S. 678, 682-83 (1946) (recognizing that a claim is subject
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to dismissal for want of jurisdiction where it is “wholly insubstantial and frivolous” and so
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patently without merit as to justify dismissal for lack of jurisdiction ); see also Franklin v.
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Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (holding that even “[a] paid complaint that is
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‘obviously frivolous’ does not confer federal subject matter jurisdiction . . . and may be
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dismissed sua sponte before service of process.”).
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Finally, plaintiff’s filing is nearly incomprehensible. To the extent the court can
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decipher plaintiff’s submission, it appears that he wishes to complain about being asked to leave
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a Hilton Hotel after parking his Mercedes Benz in front of the hotel. However, plaintiff has
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Congress has conferred jurisdiction upon the federal district courts as limited by the
United States Constitution. U.S. Const. Art. III, § 2; 28 U.S.C. § 132; Ankenbrandt v. Richards,
504 U.S. 689, 697-99 (1992).
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failed to allege any facts or any claims for relief.2 Although the Federal Rules adopt a flexible
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pleading policy, a complaint must give fair notice to the defendants and allege facts that state the
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elements of the claims both plainly and succinctly. See Jones v. Community Redev. Agency, 733
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F.2d 646, 649 (9th Cir. 1984). A plaintiff must allege with at least some degree of particularity
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specific acts which each defendant engaged in that support the plaintiff’s claims. See id.
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Accordingly, for all the reasons cited above, plaintiff’s complaint will be
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dismissed for failure to state a claim upon which relief can be granted.
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The undersigned has carefully considered whether plaintiff may amend his
complaint to state a claim upon which relief can be granted. “Valid reasons for denying leave to
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amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg.
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Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake
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Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that
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while leave to amend shall be freely given, the court does not have to allow futile amendments).
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However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff may be
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dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in
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support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
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1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972). See also Weilburg v.
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Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
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amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
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cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
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1988)).
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Here, because of the vague and conclusory nature of the allegations in plaintiff’s
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complaint the court cannot say that it appears beyond doubt that leave to amend would be futile.
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Plaintiff’s original complaint will therefore be dismissed, and he will be granted leave to file an
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In this regard, plaintiff has written at the bottom of the document, “[t]his complaint is
going to be amended!” (Compl. (Doc. No. 1) at 1.)
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amended complaint. Plaintiff is cautioned however that, if he elects to file an amended
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complaint, “the tenet that a court must accept as true all of the allegations contained in a
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complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
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action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
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U.S.662, ---, 129 S. Ct. 1937, 1949 (2009). “While legal conclusions can provide the
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complaint’s framework, they must be supported by factual allegations.” Id. at 1950. Those facts
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must be sufficient to push the claims “across the line from conceivable to plausible[.]” Id. at
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1951 (quoting Twombly, 550 U.S. at 557).
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Plaintiff is also instructed that the court cannot refer to a prior pleading in order to
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make an amended complaint complete. Local Rule 220 requires that any amended complaint be
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complete in itself without reference to prior pleadings. The amended complaint will supersede
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the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended
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complaint, just as if it were the initial complaint filed in the case, each defendant must be listed
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in the caption and identified in the body of the complaint, and each claim and the involvement of
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each defendant must be sufficiently alleged. Finally, plaintiff’s amended complaint must include
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concise but complete factual allegations describing the conduct and events which underlie his
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claims.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s June 9, 2011 application to proceed in forma pauperis (Doc. No. 2)
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is granted.
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2. The complaint filed June 9, 2011 (Doc. No. 1) is dismissed with leave to
amend.
3. Within twenty-eight (28) days from the date of this order, an amended
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complaint shall be filed that cures the defects noted in this order and complies with the Federal
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Rules of Civil Procedure and the Local Rules of Practice. The amended complaint must bear the
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case number assigned to this action and must be titled “Amended Complaint”.
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4. Failure to respond to this order in a timely manner may result in a
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recommendation that this action be dismissed.
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DATED: November 10, 2011.
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DAD:6
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