(PS) Hayes v. Southwest Airlines

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA RICHARD HAYES, No. 2:19-cv-134-KJM-EFB PS 12 Plaintiffs, 13 v. ORDER SOUTHWEST AIRLINES; CREDIT ONE BANK; and FISHES & LOAVES, Defendants.

Plaintiff seek leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His application makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

Determining that plaintiffs may proceed in forma pauperis does not complete the required inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. As discussed below, plaintiffs’ complaint must be dismissed for failure to state a claim. ///// This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).

1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

4 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

12 Under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47).

20 Liberally construed, the complaint alleges that on an unspecified date plaintiff was travelling to Los Angeles on flight operated by defendant Southwest Airlines (“Southwest”).

22 ECF No. 1 at 5. Plaintiff claims that Southwest removed him from the airplane during a layover in Denver. He also alleges that Southwest has refused to return his luggage or refund him the cost of his flight. Id. Based on these allegations, plaintiff purports to allege a claim under 42 U.S.C. § 1983 against Southwest Airlines.2 The complaint also lists Credit One Bank and Loaves and Fishes as defendants. ECF No. 1 at 1. The complaint, however, does not contain any allegations with respect to Loaves and Fishes, and the only allegation concerning Credit One Bank is that it claims to “have not received any refund from Southwest Airlines.” Id. at 5. To the extent plaintiff intended to assert claims 1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). There is no respondeat superior liability under § 1983, and each defendant is only liable for his or her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiff fails to identify any individual defendant who participated in the deprivation of his civil rights. Instead, it appears that plaintiff’s complaint concerns conduct by employees of a private entity, not individuals acting under color of state law.

9 Accordingly, plaintiff’s complaint must be dismissed. Plaintiff is granted leave to file an amended complaint, if he can allege a cognizable legal theory against a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126- 27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the allegations against each defendant and shall specify a basis for this court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in double- spaced text on paper that bears line numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts that support each claim under each header.

22 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to make an amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once plaintiff files an amended complaint, the original no longer serves any function in the case.

28 against these defendants, the complaint fails to do so.

1 | Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not | alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. | 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order || may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.

7 Accordingly, IT IS ORDERED that: 8 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

9 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

10 3. Plaintiff is granted thirty days from the date of service of this order to file an amended || complaint. The amended complaint must bear the docket number assigned to this case and must || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in || accordance with this order will result in a recommendation this action be dismissed.

14 | DATED: February 5, 2020.

15 tid, PDEA 16 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE