1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEBORAH A. BOOTH, No. 2:25-cv-01266-DJC-SCR 12 Plaintiff, 13 v. ORDER 14 U.S. DEPARTMENT OF VETERAN AFFAIRS, et al., 15 Defendants. 16 17 18 Plaintiff is proceeding pro se in this matter, which is referred to the undersigned pursuant 19 to Local Rule 302(c)(21) and

(b)(1). Plaintiff filed a motion for leave to proceed 20 in forma pauperis (“IFP”) and a declaration, including a statement of income and expenses, 21 averring she is unable to pay the costs of these proceedings. See

(a)(1). The 22 motion to proceed IFP will therefore be granted. However, for the reasons provided below, the 23 Court finds Plaintiff’s complaint is legally deficient and will grant Plaintiff leave to file an 24 amended complaint. 25 I. SCREENING 26 A. Legal Standard 27 The federal IFP statute requires federal courts to dismiss a case if the action is legally 28 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 1 monetary relief from a defendant who is immune from such relief.

(e)(2). In 2 reviewing the complaint, the Court is guided by the requirements of the Federal Rules of Civil 3 Procedure. The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules- 4 policies/current-rules-practice-procedure/federal-rules-civil-procedure. 5 Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and 6 plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this 7 court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled 8 to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief 9 sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. 10 Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in 11 the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), 12 Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms. 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams,

(1989). In reviewing a complaint under this standard, the 15 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 16 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 17 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke,

; Von 18 Saher v. Norton Simon Museum of Art at Pasadena,

(9th Cir. 2010), cert. 19 denied,

(2011). 20 The court applies the same rules of construction in determining whether the complaint 21 states a claim on which relief can be granted. Erickson v. Pardus,

(2007) (court 22 must accept the allegations as true); Scheuer v. Rhodes,

(1974) (court must 23 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 24 less stringent standard than those drafted by lawyers. Erickson,

. However, the 25 court need not accept as true legal conclusions, even if cast as factual allegations. See Moss v. 26 U.S. Secret Service,

(9th Cir. 2009). A formulaic recitation of the elements of 27 a cause of action does not suffice to state a claim. Bell Atlantic Corp. v. Twombly,

, 28 555-57 (2007); Ashcroft v. Iqbal,

(2009). 1 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 2 state a claim to relief that is plausible on its face.” Twombly,

. “A claim has 3 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 6 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Akhtar v. 7 Mesa,

(9th Cir. 2012). 8 B. The Complaint 9 Plaintiff initiated this action by filing a complaint on May 2, 2025. ECF No. 1. The 10 complaint names two defendants: 1) U.S. Department of Veterans Affairs (“VA”); and 2) 11 Dwayne Mosbey, who is listed as an administrative office at the National Memorial Cemetery of 12 the Pacific. ECF No. 1 at 2. Plaintiff alleges that the remains of her father, Donald William 13 Welch, are located at the National Memorial Cemetery of the Pacific (“National Cemetery”).

14 at 4. Plaintiff requests that the remains be released to her so that she may transfer them to the 15 Sacramento Valley National Cemetery in accord with what she contends were the final wishes of 16 her mother and father. Id. at 6. Plaintiff states that she has power of attorney for both her 17 parents. Id. 18 C. Analysis 19 Under Rule 8, the complaint must contain (1) a “short and plain statement” of the basis for 20 federal jurisdiction, (2) a short and plain statement showing that plaintiff is entitled to relief, and 21 (3) a demand for the relief sought. Fed. R. Civ. P. 8(a). Plaintiff’s complaint does not cite a 22 federal statute that confers jurisdiction. However, Plaintiff sues a federal agency. See 28 U.S.C. 23 § 1346. Plaintiff’s complaint also contains a fairly clear demand for relief – she appears to seek 24 an order directing the release of her father’s remains. Yet Plaintiff’s complaint does not contain a 25 short and plain statement demonstrating she is entitled to such relief. Plaintiff does not clearly 26 state a claim or cause of action, and does not cite any legal authority for her requested relief. 27 It is unclear if Plaintiff pursued administrative channels through the VA to try to resolve 28 this dispute prior to filing a lawsuit. A party may request disinterment of remains from a national 1 cemetery by submitting VA Form 40-4970, Request for Disinterment.1 But Plaintiff does not 2 mention that she attempted to utilize this process, or, if she did, that her request was denied. The 3 Code of Federal Regulations also addresses disinterments and provides: “Interments of eligible 4 decedents in national cemeteries are considered permanent and final. Disinterment will be 5 permitted only for cogent reasons and with the prior written authorization …”

38.621(a). The Regulation also sets forth the circumstances under which disinterment may be 7 approved (which includes obtaining the consent of all “living immediate family members”), and 8 states that “[a]ny VA-approved disinterment in this section must be accomplished without 9 expense to the Government.” § 38.621(c). Alternatively, disinterment may be approved when “a 10 court order or State instrumentality of competent jurisdiction directs the disinterment.” Id. § 11 38.621(a)(1). 12 Because it is unclear if Plaintiff followed the procedure set forth and submitted a VA 13 Form 40-4970, it is also unclear whether she seeks to challenge an administrative decision. If 14 Plaintiff is attempting to challenge a decision under the Administrative Procedure Act (APA), the 15 “APA requires that plaintiffs exhaust administrative remedies before bringing suit in federal 16 court.” Great Basin Mine Watch v. Hankins,

, 965 (9th Cir. 2006), citing

704. Plaintiff must clarify the legal basis for her requested relief, and whether she has made a 18 request to the VA. 19 Additionally, if Plaintiff chooses to file an amended complaint, she shall address whether 20 this is the proper venue, or if the action should have been filed in Hawaii. Plaintiff alleges that 21 her father’s remains are in the National Cemetery in Honolulu, Hawaii, and the address listed for 22 both Defendants is in Hawaii. She is seeking an order that his remains be released from the 23 National Cemetery in Hawaii. Under

(e) it appears that venue may be proper as 24 this is an action against an agency of the United States and an officer of that agency. 25 II. AMENDING THE COMPLAINT 26 If plaintiff chooses to amend the complaint, it must contain a short and plain statement of 27

28 1 See generally https://www.cem.va.gov/cem/disinterment.asp (last visited October 21, 2025). 1 Plaintiff’s claims. The allegations of the complaint must be set forth in sequentially numbered 2 paragraphs, with each paragraph number being one greater than the one before, each paragraph 3 having its own number, and no paragraph number being repeated anywhere in the complaint. 4 Each paragraph should be limited “to a single set of circumstances” where possible. Rule 10(b). 5 As noted above, forms are available to help plaintiffs organize their complaint in the proper way. 6 They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 7 95814, or online at www.uscourts.gov/forms/pro-se-forms. 8 The amended complaint must not force the Court or the defendant to guess at the factual 9 or legal basis for the claim. See McHenry v. Renne,

(9th Cir. 1996) 10 (affirming dismissal of a complaint where the district court was “literally guessing as to what 11 facts support the legal claims being asserted against certain defendants”). The amended 12 complaint should specifically refer to the legal basis for Plaintiff’s claim and demonstrate that she 13 is entitled to relief. 14 Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s 15 amended complaint complete. An amended complaint must be complete in itself without 16 reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended 17 complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline 18 Communications, Inc.,

, 456 n.4 (2009) (“[n]ormally, an amended complaint 19 supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice & 20 Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an 21 original complaint, each claim and the involvement of each defendant must be sufficiently 22 alleged. 23 Plaintiff’s amended complaint must address the issues set forth herein. Plaintiff should 24 address what steps she has taken to seek disinterment, what the VA’s response was, and whether 25 she has exhausted her administrative remedies. Plaintiff must also identify what law or 26 constitutional provision she proceeds under. Plaintiff must allege enough facts in support of his 27 claims to state a claim to relief that is plausible on its face. 28 //// 1 Ill. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is GRANTED. 4 2. Plaintiffs request for status (ECF No. 3) is GRANTED, in that this order advises Plaintiff 5 of the status. 6 3. Plaintiff shall have 30 days from the date of this order to file an amended complaint 7 that addresses the defects set forth above. If Plaintiff fails to timely comply with this 8 order, the undersigned may recommend that this action be dismissed. 9 4. Alternatively, if Plaintiff no longer wishes to pursue this action, Plaintiff may file a notice 10 of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil 11 Procedure. 12 SO ORDERED. 13 | DATED: October 24, 2025 Kind 1S SEAN C. RIORDAN 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28