Thompson v. Nunley ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robin Athlyn Thompson, No. CV-20-02230-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Randall Nunley, et al., 13 Defendants. 14 15 Pending before the Court is pro se Plaintiff’s Application to Proceed in Court 16 Without Prepaying Fees or Costs (Doc. 2). Upon review, Plaintiff’s Application, signed 17 under penalty of perjury, indicates that Plaintiff is financially unable to pay the filing fee. 18 The Court will grant the Plaintiff’s Application and allow her to proceed in forma pauperis 19 (“IFP”). Pursuant to 28 U.S.C. § 1915(e)(2), the Court will proceed to screen Plaintiff’s 20 First Amended Complaint (“FAC”) (Doc. 7). 21 I. Legal Standard 22 When a party has been granted IFP status, the Court must review the complaint to 23 determine whether the action: 24 (i) is frivolous or malicious; 25 (ii) fails to state a claim on which relief may be granted; or 26 (iii) seeks monetary relief against a defendant who is immune from such relief. 27 See 28 U.S.C. § 1915(e)(2)(B).1 In conducting such a review, “[i]t is . . . clear that section 28 1 “While much of § 1915 outlines how prisoners can file proceedings in forma pauperis, 1 1915(e) not only permits but requires a district court to dismiss an [IFP] complaint that 2 fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citation 3 omitted). 4 Rule 8(a) of the Federal Rules of Civil Procedure require complaints to contain “a 5 short and plain statement of the claim showing that the pleader is entitled to relief.” While 6 Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, 7 the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009).2 “Threadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Id. A complaint “must contain sufficient factual 10 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting 11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when 12 the plaintiff pleads factual content that allows the court to draw the reasonable inference 13 that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 14 556). A complaint that provides “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor will a complaint 15 suffice if it presents nothing more than “naked assertions” without “further factual 16 enhancement.” Id. at 557. 17 In addition, the Court must interpret the facts alleged in the complaint in the light 18 most favorable to the plaintiff, while also accepting all well-pleaded factual allegations as 19 true. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). That rule does not apply, 20 however, to legal conclusions. Iqbal, 556 U.S. at 678. The Court is mindful that it must 21 22 §1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners.” 23 Long v. Maricopa Cmty. College Dist., 2012 WL 588965, at *1 (D. Ariz. Feb. 22, 2012) (citing Lopez v. Smith, 203 F.3d 1122, 1126 n. 7 (9th Cir. 2000) (“[S]ection 1915(e) applies 24 to all in forma pauperis complaints[.]”); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”) 25 (citation omitted). Therefore, section 1915 applies to this non-prisoner IFP complaint. 26 2 “Although the Iqbal Court was addressing pleading standards in the context of a Rule 12(b)(6) motion, the Court finds that those standards also apply in the initial screening of 27 a complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A since Iqbal discusses the 28 general pleading standards of Rule 8, which apply in all civil actions.” McLemore v. Dennis Dillon Automotive Group, Inc., 2013 WL 97767, at *2 n. 1 (D. Idaho Jan. 8, 2013). 1 “construe pro se filings liberally when evaluating them under Iqbal.” Jackson v. Barnes, 2 749 F.3d 755, 763-64 (9th Cir. 2014) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 3 2010)). 4 II. Discussion 5 At the heart of Plaintiff’s FAC appears to be a medical malpractice claim brought 6 against her dentist for an allegedly negligent dental operation. (Doc. 7 at 22). Although the 7 Complaint claims to invoke this Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332, 8 both Plaintiff and many Defendants are alleged to be Arizona residents. (Id. at 2–3). 9 Because these parties are from the same state, diversity jurisdiction is unavailable. See 10 Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). 11 Under a liberal reading, however, the FAC may be invoking this Court’s federal- 12 question jurisdiction. Plaintiff cites 18 U.S.C. § 1961 et seq. (Doc. 7 at 46). And under 18 13 U.S.C. § 1964, there is a federal civil right of action for any person injured by a violation 14 of § 1962, which prohibits racketeering. But no facts in this FAC plead factual content that allow the Court to draw a reasonable inference that any Defendants are liable to Plaintiff 15 for racketeering. See Twombly, 550 U.S. at 556. Therefore, the Court finds no plausible 16 claim under 18 U.S.C. § 1964 and will dismiss it. 17 The FAC contains no other federal causes of action. And all the remaining claims 18 are state law causes of action, such as negligence and fraud. These state-law causes of 19 action fall under the Court’s supplemental jurisdiction, which the Court may and should 20 decline to invoke when each federal claim is dismissed before trial. 28 U.S.C. § 1367(c)(3); 21 United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Acri v. Varian Assocs., 22 Inc., 114 F.3d 999, 1000 (9th Cir. 1997). Here, the Court will decline to exercise 23 jurisdiction over the remaining state-law claims, and it will dismiss the entire FAC. 24 III. Leave to Amend 25 In this Circuit, if “it is not ‘absolutely clear’ that [Plaintiff] could not cure [the 26 Complaint’s] deficiencies by amendment,” the Court will give her a chance to cure them. 27 See Jackson v. Barnes, 749 F.3d 755, 767 (9th Cir. 2014) (citations omitted); see also 28 Lopez, 203 F.3d at 1131 (en banc) (internal quotation marks and citations omitted) (holding 1 that a pro se litigant must be given leave to amend the complaint “if it appears at all possible 2 that the plaintiff can correct the defect” in the complaint); Fed. R. Civ. P. 15(a)(2) (leave 3 to amend should be “freely” given “when justice so requires”). 4 If Plaintiff believes she can amend her FAC to solve the deficiencies noted above, 5 then she may file a second amended complaint. Plaintiff’s amended complaint should 6 follow the form detailed in Rule 7.1 of the Local Rules of Civil Procedure (“LRCiv”). 7 Examples of different types of complaints demonstrating the proper form can be found in 8 the appendix of forms that is contained with the Federal Rules of Civil Procedure (forms 9 11–21).3 Each claim or cause of action must be set forth in a separate count. Plaintiff 10 should bear in mind that the Federal Rules of Civil Procedure require a short and 11 plain statement of the grounds for the Court’s jurisdiction and a short and plain 12 statement of the claim showing she is entitled to relief. Fed. R. Civ. P. 8. A longer 13 complaint is not necessarily a better one. Finally, the Court recommends Plaintiff review 14 the information available in the District Court’s Handbook for Self-Represented Litigants, which is available online.4 15 Within thirty (30) days from the date of entry of this Order, Plaintiff may submit 16 an amended complaint. Plaintiff must clearly designate on the face of the document that it 17 is the “Second Amended Complaint.” This amended complaint must be retyped or 18 rewritten in its entirety and may not incorporate any part of the original Complaint by 19 reference. Plaintiff should also be aware that “an amended complaint supersedes the 20 original complaint and renders it without legal effect[.]” Lacey v. Maricopa County, 693 21 F.3d 896, 927 (9th Cir. 2012) (en banc). Thus, after amendment, the Court will treat an 22 original complaint as nonexistent. Id. at 925. 23 IV. Warning 24 Plaintiff is advised that if she elects to file a second amended complaint but fails to 25 26 3 Those forms as well as the Federal Rules of Civil Procedure and the Local Rules, as well as other information for individuals filing without an attorney may be found on the District 27 Court's internet web page at www.azd.uscourts.gov/. 28 4 The Handbook may be found at http://www.azd.uscourts.gov/handbook-self-represented- litigants. ! |) comply with the Court’s instructions explained in this Order, the action will be dismissed pursuant to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil 3|| Procedure. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal 4|| with prejudice of amended complaint that did not comply with Rule 8(a)). If Plaintiff fails 5 || to prosecute this action, or if she fails to comply with the rules or any court order, the Court 6 || may dismiss the action with prejudice pursuant to Rule 41(b) of the Federal Rule of Civil || Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Ghazali v. Moran, || 46 F.3d 52, 54 (9th Cir. 1995). 9 Accordingly, 10 IT IS HEREBY ORDERED that the Application to Proceed in District Court 11 || Without Prepaying Fees or Costs (Doc. 2) is GRANTED. 12 IT IS FURTHER ORDERED that Plaintiff’s First Amended Complaint (Doc. 7) || is dismissed with leave to file a Second Amended Complaint within thirty (30) days of the 14 date this Order is entered; 15 IT IS FURTHER ORDERED that if Plaintiff does not file a Second Amended 16 Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court shall 17 dismiss this action without further order of this Court; and 18 IT IS FINALLY ORDERED that if Plaintiff elects to file a Second Amended 19 Complaint, it may not be served until and unless the Court issues an Order screening the 20 amended complaint pursuant to 28 U.S.C. § 1915(e)(2). Dated this 3rd day of December, 2020. 22 23 ' JL — a 24 Kean DiangZ United States District Fudge 26 27 28 _5-