1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AKIKA PARKER, No. 2:20-cv-00171-TLN-CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS

14 SACRAMENTO POLICE DEPARTMENT et al., 15 Defendants. 16 17 Plaintiff is proceeding in this action pro se. The court previously granted plaintiff’s 18 request to proceed in forma pauperis and dismissed plaintiff’s complaint with leave to amend. 19 (ECF No. 3.) Plaintiff subsequently filed an amended complaint. (ECF No. 4.) 20 The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 21 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 22 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 23 § 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 In order to avoid dismissal for failure to state a claim a complaint must contain more than 2 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 3 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim 6 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 7 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 8 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 9 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 10 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 11 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 12 U.S. 232, 236 (1974). 13 Plaintiff’s amended complaint is three pages long and includes the same two-page factual 14 recitation contained in her original complaint. (Compare ECF No. 1 with ECF No. 4.) The 15 additional page of her amended complaint is a recitation of causes of action, without factual 16 assertions, and a demand for a billion dollars. (ECF No. 4 at 1.) 17 As the court previously found, plaintiff’s complaint does not lay out, in plain terms, a 18 statement of her claim or the relief she is seeking. Rather, plaintiff’s complaint puts forth a 19 multitude of seemingly unrelated incidents. For example, her complaint mentions police 20 brutality, subliminal messages, lost fetuses, sexual assault, attempted poisoning, notorious gangs, 21 and a presidential pardon. (See ECF No. 4.) While there may be relevant factual allegations 22 contained in the amended complaint that might form the basis of an actionable claim, the court 23 cannot currently determine the claim(s) she is asserting, or how this court has jurisdiction over 24 her complaint. Thus, the court finds the allegations in plaintiff’s complaint so vague and 25 conclusory that they fail to state a claim for relief. Although the Federal Rules adopt a flexible 26 pleading policy, a complaint must give fair notice and state the elements of the claim plainly and 27 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff 28 must allege with at least some degree of particularity overt acts that defendants engaged in that 1 support plaintiff’s claim. Id. The additional page plaintiff added in her amended complaint does 2 not correct these problems as the page only contains a threadbare recitation of causes of action, 3 insufficient to survive dismissal. See Iqbal, 129 S. Ct. at 1949. Thus, plaintiff’s complaint must 4 be dismissed. 5 If the court finds that a complaint should be dismissed for failure to state a claim, the court 6 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126– 7 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 8 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130–31; see 9 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 10 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 11 clear that the deficiencies of the complaint could not be cured by amendment.” (citing Noll v. 12 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after careful consideration, it is 13 clear that a complaint cannot be cured by amendment, the court may dismiss without leave to 14 amend. Cato, 70 F.3d at 1105–06 (affirming dismissal and finding the plaintiff’s “theories of 15 liability either fall outside the limited waiver of sovereign immunity by the United States, or 16 otherwise are not within the jurisdiction of the federal courts”). 17 The undersigned finds that, as set forth above, plaintiff has failed to state a claim for 18 which relief can be granted. Plaintiff was previously provided an opportunity to amend her 19 complaint. However, plaintiff’s amended complaint is essentially identical to her original 20 complaint and still fails to give fair notice of her claim or to state the elements of a claim in a 21 plain and concise manner. Accordingly, the undersigned finds that amendment would be futile 22 and therefore recommends dismissal without leave to amend. 23 Accordingly, it is HEREBY RECOMMENDED that: 24 Plaintiff’s complaint be DISMISSED without leave to amend. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, the parties may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned wOASe 2 OU UVM EE RU PRIN INES MUU SOC Me OY OT Mt

1 | “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 2 | failure to file objections within the specified time may waive the right to appeal the District 3 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (th Cir. 1991). 4 | Dated: May 20, 2020 f° Lf i, / CAN fu fl. ay > CAROLYN K. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 | 16.171.F&R 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28