Case 2:12-cv-01302-KJM-JFM Document 4 Filed 05/22/12 Page 1 of 3
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`JENNY TSUI,
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`Plaintiff,
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`No. CIV 2:12-cv-1302-KJM-JFM (PS)
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`vs.
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`DICK CHENEY, et al.,
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`Defendants.
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`ORDER
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`Plaintiff is proceeding in this action pro se. Plaintiff seeks relief pursuant to and
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`has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This
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`proceeding was referred to this court by Local Rule 72-302(c)(21).
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`Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is
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`unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in
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`forma pauperis will be granted. 28 U.S.C. § 1915(a).
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`The federal in forma pauperis statute authorizes federal courts to dismiss a case if
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`the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be
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`granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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`§ 1915(e)(2).
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`Case 2:12-cv-01302-KJM-JFM Document 4 Filed 05/22/12 Page 2 of 3
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`A claim is legally frivolous when it lacks an arguable basis either in law or in
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`fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-
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`28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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`indisputably meritless legal theory or where the factual contentions are clearly baseless.
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`Neitzke, 490 U.S. at 327.
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`A complaint, or portion thereof, should only be dismissed for failure to state a
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`claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set
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`of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &
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`Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer
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`v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a
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`complaint under this standard, the court must accept as true the allegations of the complaint in
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`question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
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`pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,
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`Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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`The court finds the allegations in plaintiff's complaint so vague and conclusory
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`that it is unable to determine whether the current action is frivolous or fails to state a claim for
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`relief. The court has determined that the complaint does not contain a short and plain statement
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`as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading
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`policy, a complaint must give fair notice and state the elements of the claim plainly and
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`succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff
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`must allege with at least some degree of particularity overt acts which defendants engaged in that
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`support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of
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`Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to
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`file an amended complaint.
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`If plaintiff chooses to amend the complaint, plaintiff must set forth the
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`jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil
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`Case 2:12-cv-01302-KJM-JFM Document 4 Filed 05/22/12 Page 3 of 3
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`Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted
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`in a deprivation of plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
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`In addition, plaintiff is informed that the court cannot refer to a prior pleading in
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`order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an
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`amended complaint be complete in itself without reference to any prior pleading. This is
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`because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
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`Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original
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`pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an
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`original complaint, each claim and the involvement of each defendant must be sufficiently
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`alleged.
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`In accordance with the above, IT IS HEREBY ORDERED that:
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`1. Plaintiff's request to proceed in forma pauperis is granted;
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`2. Plaintiff's complaint is dismissed; and
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`3. Plaintiff is granted thirty days from the date of service of this order to file an
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`amended complaint that complies with the requirements of the Federal Rules of Civil Procedure,
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`and the Local Rules of Practice; the amended complaint must bear the docket number assigned
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`this case and must be labeled "Amended Complaint"; plaintiff must file an original and two
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`copies of the amended complaint; failure to file an amended complaint in accordance with this
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`order will result in a recommendation that this action be dismissed.
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`DATED: May 21, 2012.
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`/014;tsui1302.dismissifp.lta
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