(PS) Gifford v. Hornbrook Community Services District, et al, No. 2:2015cv01274 - Document 9 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS, recommending that plaintiff's 8 First Amended Complaint be dismissed without leave to amend, signed by Magistrate Judge Allison Claire on 1/26/2016. These Findings & Recommendations are SUBMITTED to Chief Judge Morrison C. England, Jr.. Within 21 days after being served with these F & Rs, plaintiff may file written Objections with Court. (Marciel, M)
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(PS) Gifford v. Hornbrook Community Services District, et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER GIFFORD, 12 13 14 15 No. 2:15-cv-01274-MCE-AC Plaintiff, v. FINDINGS & RECOMMENDATIONS HORNBROOK COMMUNIITY SERVICES DISTRICT, et al., Defendants. 16 17 18 Plaintiff, proceeding in this action pro se and in forma pauperis, filed his first amended 19 complaint on January 21, 2016, pursuant to the court’s order. ECF No. 8. This proceeding was 20 referred to this court by Local Rule 302(c)(21). The federal in forma pauperis statute authorizes 21 federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to state a 22 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 23 immune from such relief. 28 U.S.C. § 1915(e)(2). 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th 26 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 27 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 28 490 U.S. at 327. 1 Dockets.Justia.com 1 Federal Rule of Civil Procedure 8(a) requires that “[a] pleading which sets forth a claim 2 for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is 3 entitled to relief.” “A claim is the ‘aggregate of operative facts which give rise to a right 4 enforceable in the courts.’” Bautista v. Los Angeles Cty., 216 F.3d 837, 840 (9th Cir. 2000) 5 (quoting Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2d Cir. 1943)). To 6 comply with the Rule, a plaintiff must plead a short and plain statement of the elements of his or 7 her claim, “identifying the transaction or occurrence giving rise to the claim and the elements of a 8 prima facie case,” which elements, of course, will vary depending on the species of claim being 9 asserted. See Bautista, 216 F.3d at 840. 10 The court finds that plaintiff’s amended complaint is so lengthy and given to tangents, 11 minute details, legal conclusions, and other clutter that it is neither “short” nor “plain.” Although 12 the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the 13 elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 14 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts 15 defendant engaged in that support plaintiff's claims. Id. “The court (and any defendant) should 16 be able to read and understand Plaintiff's pleading within minutes.” Clayburn v. Schirmer, No. 17 CIV S-06-2182 ALA P, 2008 WL 564958, at *4 (E.D. Cal. Feb. 28, 2008) (citing McHenry v. 18 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)). 19 Plaintiff’s amended complaint is 143 single-spaced pages, replete with lengthy footnotes 20 and narratives relating to his experiences with the Hornbrook Community Services District 21 (HCSD), its board members, and others. Plaintiff’s pleading would take days to decipher, not 22 minutes, to the extent it is decipherable at all. It presents thirty-four purportedly separate claims. 23 These claims do not include factual allegations supporting them. Instead, plaintiff makes 24 ambiguous references to facts alleged earlier in his complaint. See, e.g., ECF No. 8 at 132 25 (incorporating by reference the “acts as complained of herein”). “The result is that each count is 26 replete with factual allegations that could not possibly be material to that specific count, and that 27 any allegations that are material are buried beneath innumerable pages of rambling irrelevancies.” 28 Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001). This form of pleading is called 2 1 “shotgun pleading,” and as the court already warned plaintiff in its order dismissing his original 2 complaint, it is unacceptable. ECF No. 3 at 2–3. 3 The court will also recommend that the dismissal of plaintiff’s amended complaint be 4 without leave to amend. Courts must grant leave to amend where justice so requires. Fed. R. 5 Civ. P. 15(a). A district court, however, may in its discretion deny leave to amend “due to ‘undue 6 delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies 7 by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance 8 of the amendment, [and] futility of amendment.’” Leadsinger, Inc. v. BMG Music Publ’g, 512 9 F.3d 522, 532 (9th Cir. 2008). District courts have particularly broad discretion to dismiss 10 without leave to amend where a plaintiff has amended once already. See Zucco Partners, LLC v. 11 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009), as amended (Feb. 10, 2009). 12 Plaintiff has already been given one chance to amend his complaint with detailed 13 instructions by the court. Those instructions included very specific warnings (1) to make his 14 amended complaint brief, and (2) not to engage in shotgun pleading. ECF No. 3 at 2–3. Plaintiff 15 has completely disregarded these directions in amending the complaint. Moreover, if that were 16 not enough, the court’s October 23, 2015, order granting plaintiff’s an extension of time again 17 warned him that “in order to satisfy Rule 8 his complaint must contain a short and plain 18 statement showing he is entitled to relief.” ECF No. 5. Nevertheless, he has submitted an 19 amended complaint that does not improve upon his previous complaint. Accordingly, the court 20 will recommend that plaintiff’s amended complaint be dismissed without leave to amend because 21 leave to amend would be futile. 22 23 24 In accordance with the above, THE COURT HEREBY RECOMMENDS that plaintiff’s amended complaint, ECF No. 8, be dismissed without leave to amend. These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 26 days after being served with these findings and recommendations, plaintiff may file written 27 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 3 1 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 DATED: January 26, 2016 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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