1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HUEVEL, No. 2:22-cv-2292-DAD-CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS

13 v.

14 KATHY MCMILLAN, 15 Defendant. 16 17 18 Plaintiff, appearing pro se, filed a second amended complaint (SAC) on May 26, 2023, 19 which is pending before this court.1 (ECF No. 8.) As discussed below, the court finds that 20 plaintiff’s SAC fails to state a claim. The court recommends this case be dismissed without 21 further leave to amend. 22 I. Legal Standards 23 Under the in forma pauperis (“IFP”) statute, the court must screen the complaint and 24 dismiss any claims that are “frivolous or malicious,” fail to state a claim on which relief may be 25 granted, or seek monetary relief against an immune defendant.2 28 U.S.C. § 1915(e)(2). Rule 26 1 Actions in which a party proceeds without counsel are referred to a magistrate judge pursuant to 27 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 2 This court granted plaintiff leave to proceed in forma pauperis (“IFP”) on April 21, 2023. (ECF 28 No. 7.) 1 8(a) requires that a pleading be “(1) a short and plain statement of the grounds for the court’s 2 jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to 3 relief; and (3) a demand for the relief sought, which may include relief in the alternative or 4 different types of relief.” Each allegation must be simple, concise, and direct. Rule 8(d)(1); see 5 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other grounds) (“Rule 8(a) 6 is the starting point of a simplified pleading system, which was adopted to focus litigation on the 7 merits of a claim.”). 8 A complaint fails to state a claim if it either lacks a cognizable legal theory or sufficient 9 facts to allege a cognizable legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 10 2015). To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 11 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 12 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 13 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 14 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a complaint “must 15 contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 16 face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 17 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 18 When considering whether a complaint states a claim upon which relief can be granted, 19 the court must accept the well-pleaded factual allegations as true, Erickson v. Pardus, 551 U.S. 20 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan 21 v. Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 22 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 23 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 24 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 25 II. Analysis 26 None of the statements in plaintiff’s SAC suggest that a constitutional violation occurred. 27 The gist of the SAC appears to be that “a person's right to use a library should not be denied by an 28 employee of any governing entity.” (ECF No. 8 at 2.) However, such an allegation is a 1 conclusory assertion. A complaint that contains conclusory assertions, without more, will not 2 survive a screening inquiry. Twombly, 550 U.S. at 555-57 (to avoid dismissal for failure to state 3 a claim, a complaint must contain more than “naked assertions,” “labels and conclusions,” or “a 4 formulaic recitation of the elements of a cause of action”). The rest of the SAC consists largely 5 of incomprehensible statements such as “[t]he concepts of “hang town U.S.A. have the lasting 6 separate values” and “[t]his defendant has intent actions of abuse, that knowingly cause extreme 7 high blood pressures in this stroke recove[r]y plaintiff.” (ECF No. 8 at 1.) The court cannot 8 glean a cognizable claim from these statements. As plaintiff has not provided nearly enough facts 9 to survive the court’s screening inquiry, the undersigned finds that plaintiff’s complaint fails to 10 state a claim and recommends plaintiff’s complaint be dismissed. 11 III. Leave to amend 12 Where a “plaintiff has previously been granted leave to amend and has subsequently failed 13 to add the requisite particularity to his claims, the district court's discretion to deny leave to 14 amend is particularly broad.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th 15 Cir. 2009), as amended (Feb. 10, 2009) (quotations and citations omitted). 16 In its prior order, the court found plaintiff had failed to state a claim, as the FAC did not 17 contain any factual allegations regarding the defendant. (ECF No. 7 at 4., citing Iqbal, 556 U.S. 18 at 678 (citations omitted)). The court granted leave to amend and instructed that in any amended 19 complaint, plaintiff allege the specific conduct defendant engaged in, when the conduct occurred, 20 and how the conduct harmed him. (Id. at 5.) Here, instead of providing the factual information 21 that the court has asked for, plaintiff contends “the injuries need not be [d]etailed further.” (ECF 22 No. 8 at 2.) Given plaintiff’s failure to provide additional information about his claims despite 23 specific instructions from the court, the court finds that further leave to amend would be futile and 24 thus recommends that no leave to amend be granted. Hartmann v. CDCR, 707 F.3d 1114, 1130 25 (9th Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”). 26 IV. Warning regarding duplicative filings 27 This court notes that plaintiff continually fails to comply with the court’s instructions. In 28 Van Den Huevel v. Dorothy, plaintiff filed an action against three librarians alleging due process 1 | violations because of a suspension. See Van Den Heuvel v. Dorothy, No. 2:21-CV-2176-TLN- 2 | CKD-PS, 2022 WL 17631865, at *1 (E.D. Cal. Dec. 13, 2022), report and recommendation 3 || adopted sub nom; Heuvel v. Dorothy, No. 2:21-CV-02176-TLN-CKD, 2023 WL 1447316 (E.D. 4 | Cal. Feb. 1, 2023). There, the court provided plaintiff with the legal standards for stating a due 5 || process claim for his library suspension and granted plaintiff leave to amend his complaint twice. 6 || However, because plaintiff failed to meet the pleading requirements of Rule 8 and heed the 7 || court’s instructions, the court dismissed plaintiffs action with prejudice. 8 Plaintiffs practice of repetitive filings without regard for the court’s instructions is 9 || burdensome to court personnel and strains the court’s limited resources. Plaintiff is thus warned 10 || that duplicative filings and continual failures to comply with court orders could result in the entry 11 | ofa vexatious litigant order against him which would restrict his ability to file cases in this court. 12 RECOMMENDATIONS 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiff's complaint be DISMISSED without further leave to amend. 15 2. The Clerk of Court be directed to CLOSE this case. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen (14) 18 || days after being served with these findings and recommendations, plaintiff may file written 19 || objections with the court. Such a document should be captioned “Objections to Magistrate 20 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 21 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 22 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 23 | 1991). 24 | Dated: June 28, 2023 / □□ I / dle ae 25 CAROLYNK. DELANEY 2% UNITED STATES MAGISTRATE JUDGE 27 28 || 21,vand.2292