1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON O. MURPHY, Sr., Case No. 2:23-cv-01458-DJC-JDP (PS) 12 Plaintiff, ORDER 13 v. GRANTING PLAINTIFF’S APPLICATION

TO PROCEED IN FORMA PAUPERIS

14 ANTIOCH POLICE DEPARTMENT, ECF No. 2 15 Defendant.

FINDINGS AND RECOMMENDATIONS

16

THAT PLAINTIFF’S COMPLAINT BE

17 DISMISSED WITHOUT LEAVE TO AMEND

FOR FAILURE TO STATE A CLAIM

18 ECF No. 1 19

OBJECTIONS DUE WITHIN FOURTEEN

20 DAYS 21 22 Plaintiff brings this action against defendant Antioch Police Department, purporting to 23 allege various state law claims. The complaint alleges neither a cognizable claim nor a basis for 24 subject matter jurisdiction. I will therefore recommend dismissal of this action. I will also grant 25 plaintiff’s application to proceed in forma pauperis, ECF No. 2, which makes the showing 26 required by 28 U.S.C. §§ 1915(a)(1) and (2). 27 28 1 Screening and Pleading Requirements 2 Plaintiff’s complaint is subject to screening under 28 U.S.C. § 1915(e). That statute 3 requires the court to dismiss any action filed by a plaintiff proceeding in forma pauperis that is 4 frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks 5 monetary relief against a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2)(B). 6 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 7 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 8 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 9 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 10 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 11 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 12 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 13 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 14 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 15 n.2 (9th Cir. 2006) (en banc) (citations omitted). 16 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 17 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 18 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 19 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 20 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 21 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 22 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 23 Analysis 24 The complaint fails to state a cognizable claim. Plaintiff alleges claims for negligence, 25 breach of contract, discrimination, harassment, and assault, but does not describe the events 26 giving rise to those purported claims. ECF No. 1 at 2. His allegations do not describe what 27 28 1 happened, how he was injured, or how defendant was responsible for any injuries.1 Additionally, 2 plaintiff has not alleged facts establishing federal question jurisdiction. Plaintiff’s claims sound 3 in state law, and there is no allegation that diversity jurisdiction exists. See 28 U.S.C. §§ 1331; 4 1332. 5 Accordingly, plaintiff’s complaint is deficient and cannot proceed. I recommend that the 6 dismissal be without leave to amend. The instant complaint is one several complaints that 7 plaintiff has filed in this court that contains vague and conclusory allegations. Each of his prior 8 complaints were dismissed for failure to state a claim or lack of subject matter jurisdiction. See, 9 e.g., Murphy v. First Republic Bank, N.A., No. 2:21-cv-00399-JAM-CKD (PS) (discussing 10 plaintiff’s repeated failure to establish subject matter jurisdiction and satisfy the pleading 11 standard); Murphy v. Federal Express Corp., No. 2:21-cv-00142-KJM-KJM (PS); Murphy v. 12 Farmers Ins. Co., No. 2:20-cv-1456-KJM-DB (PS). Given plaintiff’s history of failing deficient 13 complaint, I find that granting leave to amend would be futile. See Silva v. Di Vittorio, 658 F.3d 14 1090, 1105 (9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper 15 only if it is absolutely clear that the deficiencies of the complaint could not be cured by 16 amendment.”) (internal quotation marks omitted). 17 Accordingly, it is hereby ORDERED that plaintiff’s application to proceed in forma 18 pauperis, ECF No. 2, is granted. 19 Further, it is hereby RECOMMENDED that plaintiff’s complaint, ECF No. 1, be 20 dismissed without leave to amend for failure to state a claim. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26

27 1 Out of an abundance of caution, I have considered the separate memorandum that plaintiff has filed on the docket. ECF No. 4. It also fails to shed any light on his claims, 28 however. 1 | objections shall be served and filed within fourteen days after service of the objections. The 2 | parties are advised that failure to file objections within the specified time may waive the right to 3 | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 4 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 5 6 IT IS SO ORDERED.

Dated: _ January 24, 2024 Q_———— 8 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28