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-00852-DJC-JDP (PS) 12 Plaintiff, ORDER 13 v. GRANTING PLAINTIFF’S APPLICATION

TO PROCEED IN FORMA PAUPERIS

14 NATION’S GIANT HAMBURGERS, 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 Nation’s Giant Hamburgers. The 23 complaint’s allegations do not state a federal claim. I will therefore recommend dismissal of this 24 action. I will also grant plaintiff’s application to proceed in forma pauperis, ECF No. 2, which 25 makes the showing required by 28 U.S.C. §§ 1915(a)(1) and (2). 26 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 that he was in El Cerrito, 25 California on business and in his company truck when a delivery truck double parked and blocked 26 his safe exit. ECF No. 1 at 2. The only link to defendant Nation’s Giant Hamburgers appears to 27 be that the double-parked truck was making a delivery to a location affiliated with the company. 28 Id. Having reviewed the allegations and construing them liberally, I can make out no federal 1 claim. Additionally, even if a state law claim could be found herein (I have not identified one), 2 plaintiff has failed to establish subject matter jurisdiction. Plaintiff alleges that jurisdiction is 3 warranted because of the amount sought in damages. Id. at 1. This alone does not establish 4 federal jurisdiction, however. He has failed to plead either federal question or diversity 5 jurisdiction. See 28 U.S.C. §§ 1331; 1332. 6 Accordingly, I recommend that plaintiff’s complaint be dismissed for failure to state a 7 claim without leave to amend. The instant complaint is one of several complaints that plaintiff 8 has filed in this court that contains vague and conclusory allegations. Each of his prior 9 complaints were dismissed for failure to state a claim or lack of subject matter jurisdiction. See, 10 e.g., Murphy v. First Republic Bank, N.A., No. 2:21-cv-00399-JAM-CKD (PS) (discussing 11 plaintiff’s repeated failure to establish subject matter jurisdiction and satisfy the pleading 12 standard); Murphy v. Federal Express Corp., No. 2:21-cv-00142-KJM-KJM (PS); Murphy v. 13 Farmers Ins. Co., No. 2:20-cv-1456-KJM-DB (PS). Given plaintiff’s history of filing deficient 14 complaints, I find that granting leave to amend would be futile. See Silva v. Di Vittorio, 658 F.3d 15 1090, 1105 (9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper 16 only if it is absolutely clear that the deficiencies of the complaint could not be cured by 17 amendment.”) (internal quotation marks omitted). 18 Accordingly, it is hereby ORDERED that plaintiff’s application to proceed in forma 19 pauperis, ECF No. 2, is granted. 20 Further, it is hereby RECOMMENDED that plaintiff’s complaint, ECF No. 1, be 21 dismissed without leave to amend for failure to state a claim. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 27 objections shall be served and filed within fourteen days after service of the objections. The 28 parties are advised that failure to file objections within the specified time may waive the right to 1 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 2 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED.

Dated: _ January 24, 2024 Q_———— 6 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28