1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FERNANDO FONTANEZ, Case No. 21-cv-06920-JCS

8 Plaintiff, ORDER GRATING APPLICATION TO PROCEED IN FORMA PAUPERIS 9 v. ORDER TO SHOW CAUSE WHY 10 FACEBOOK, INC., CASE SHOULD NOT BE DISMISSED

Defendant. 11 Re: Dkt. Nos. 1, 2

12 13 I. INTRODUCTION 14 Plaintiff Fernando Fontanez, pro se, has applied to proceed in forma pauperis. Dkt. 2. 15 Sufficient cause having been shown, that application is GRANTED. 16 The Court now reviews the sufficiency of Fontanez’s complaint against Defendant 17 Facebook Inc. under

(e)(2)(B). For the reasons discussed below, Fontanez is 18 ORDERED TO SHOW CAUSE why this case should not be dismissed, by filing a response to this 19 order no later than October 8, 2021. If Fontanez does not respond to this order by that date, the 20 case will be reassigned to a United States district judge with a recommendation that it be 21 dismissed with prejudice. 22 II. THE COMPLAINT 23 Fontanez alleges that Facebook disabled his account, failed to send SMS access codes to 24 his phone, and has not responded to his request to meet with a Facebook representative to discuss 25 fraud purportedly perpetrated on Facebook and the possibility of a one-percent reward to Fontanez 26 for bringing that issue to Facebook’s attention. Compl. (dkt. 1). He asserts a claim for breach of 27 contract.

He attaches to his complaint a number of communications he sent to Facebook and 1 III. ANALYSIS 2 A. Legal Standard for Review Under § 1915 3 Where a plaintiff is found to be indigent under

(a)(1) and is granted leave 4 to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: 5 (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek 6 monetary relief from a defendant who is immune from such relief.

(e)(2)(B); see 7 Marks v. Solcum,

(9th Cir. 1996). Rule 8(a)(2) of the Federal Rules of Civil 8 Procedure provides that a pleading must contain a “short and plain statement of the claim showing 9 that the pleader is entitled to relief.” A complaint that lacks such statement fails to state a claim 10 and must be dismissed. 11 In determining whether a plaintiff fails to state a claim, the court assumes that all factual 12 allegations in the complaint are true. Parks Sch. of Bus. v. Symington,

(9th 13 Cir. 1995). However, “the tenet that a court must accept a complaint’s allegations as true is 14 inapplicable to legal conclusions” and to “mere conclusory statements.” Ashcroft v. Iqbal, 556

, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

(2007)). “A pleading 16 that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action 17 will not do.’”

(quoting Twombly,

). The pertinent question is whether the 18 factual allegations, assumed to be true, “state a claim to relief that is plausible on its face.” 19 Twombly,

. 20 Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must 21 “construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. 22 Pliler,

(9th Cir. 2010) (citations omitted). “A district court should not dismiss a 23 pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the 24 complaint could not be cured by amendment.’” Akhtar v. Mesa,

(9th Cir. 25 2012) (quoting Schucker v. Rockwood,

, 1203−04 (9th Cir. 1988) (per curiam)). 26 B. Breach of Contract 27 Fontanez does not specify the law he believes applies to his claim for breach of contract. 1 following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, 2 (3) defendant’s breach, and (4) the resulting damages to plaintiff.” Armstrong Petroleum Corp. v. 3 Tri-Valley Oil & Gas Co.,

, 1391 n.6 (2004). 4 Fontanez’s complaint includes the following passage, which addresses those elements in a 5 cursory manner:

6 Plaintiff seeks $20,000.00 in damages as Plaintiff did have a legal binding contract with Defendant Plaintiffs performance is noted on 7 Defendants Facebook page with breach on Defendants part and damage to Plaintiff in a scheme of identity theft to steal (by murder 8 of Plaintiff) Plaintiffs naming rights worth billions, and deny Plaintiff life, liberty and the pursuit of the American dream despite Plaintiffs 9 life works to get the world and Americans monies illegally deprived of all by communists. 10 11 Compl. at 2–3. He asserts no basis for liability other than breach of contract. 12 Under Iqbal, this sort of “‘formulaic recitation of the elements of a cause of action will not 13 do.’” 556 U.S. at 678 (quoting Twombly,

). Fontanez has not explained what the 14 terms of his alleged contract with Facebook were, how he performed under the contract, what 15 aspect of Facebook’s conduct or inaction breached the contract, or how Facebook’s purported 16 breach damaged Fontanez or had any relationship to a scheme of identity theft and murder (which 17 is in turn also not explained with any factual allegations). The attachments to his complaint do not 18 provide any clear answers to these questions. 19 Fontanez is therefore ORDERED TO SHOW CAUSE why his complaint should not be 20 dismissed under

(e)(2)(B) for failure to include sufficient factual allegations to 21 state a plausible claim on which relief may be granted. 22 IV. CONCLUSION 23 For the reasons discussed above, Fontanez is ORDERED TO SHOW CAUSE why this 24 case should not be dismissed for failure to state a claim on which relief may be granted, by filing 25 no later than October 7, 2021 either: (1) an amended complaint; or (2) a response arguing why his 26 current complaint is sufficient. 27 Any amended complaint must include the caption and civil case number used in this order ] amended complaint completely replaces the previous complaint, any amendment may not 2 || incorporate claims or allegations of Fontanez’s original complaint by reference, but instead must 3 include all of the facts and claims Fontanez wishes to present and all of the defendants he wishes 4 || tosue. See Ferdik v. Bonzelet,

(9th Cir. 1992). 5 IT ISSO ORDERED. 6 || Dated: September 10, 2021 7 c ao J PH C. SPERO 8 ief Magistrate Judge 9 10 1]

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