Turner v. Greondyke Transportation ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Keith Turner, No. CV-20-02476-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Greondyke Transportation, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s Application to Proceed in District Court 16 Without Prepaying Fees or Cost (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 Plaintiff’s Application and allow him 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 Complaint (Doc. 1). 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 this review, “section 1915(e) not only 28 1 “While much of § 1915 outlines how prisoners can file proceedings in forma pauperis, 1 permits but requires a district court to dismiss an [IFP] complaint that fails to state a claim.” 2 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citation omitted). 3 Federal Rule of Civil Procedure 8(a) requires complaints to make “a short and plain 4 statement of the claim showing that the pleader is entitled to relief.” While Rule 8 does 5 not demand detailed factual allegations, “it demands more than an unadorned, the 6 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 7 (2009).2 “Threadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Id. A complaint “must contain sufficient factual 9 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting 10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when 11 the plaintiff pleads factual content that allows the court to draw the reasonable inference 12 that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 13 556). A complaint that provides “labels and conclusions” or “a formulaic recitation of the 14 elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor will a complaint suffice if it presents nothing more than “naked assertions” without “further factual 15 enhancement.” Id. at 557. 16 The Court must accept all well-pleaded factual allegations as true and interpret the 17 facts in the light most favorable to the plaintiff. Shwarz v. United States, 234 F.3d 428, 18 435 (9th Cir. 2000). That rule does not apply, however, to legal conclusions. Iqbal, 556 19 U.S. at 678. The Court is mindful that it must “construe pro se filings liberally when 20 21 §1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners.” 22 Long v. Maricopa Cmty. College Dist., 2012 WL 588965, at *1 (D. Ariz. Feb. 22, 2012) 23 (citing Lopez v. Smith, 203 F.3d 1122, 1126 n. 7 (9th Cir. 2000) (“[S]ection 1915(e) applies to all in forma pauperis complaints[.]”); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 24 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”) (citation omitted). Therefore, section 1915 applies to this non-prisoner IFP complaint. 25 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 evaluating them under Iqbal.” Jackson v. Barnes, 749 F.3d 755, 763–64 (9th Cir. 2014) 2 (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)). 3 II. Discussion 4 Although Plaintiff’s Complaint alleges certain causes of action, it fails to state a 5 claim because it does not allege any facts showing he is entitled to relief. Plaintiff attached 6 the requisite Notice of Right to Sue letter from the Equal Employment Opportunity 7 Commission for claims under the Civil Rights Act and the Americans with Disabilities Act. 8 (Doc. 1 at 3). This demonstrates Plaintiff’s intended legal claims. But the Complaint does 9 not explain what happened or why he brings these claims. There is some indication that 10 Plaintiff suffers from a brain injury, although it is not clear if this is related to his claims. 11 (Doc. 1 at 4). And if it is related, there are not enough factual allegations to demonstrate 12 how Defendants are liable. Plaintiff must allege facts showing he has a plausible legal 13 claim. See Iqbal, 556 U.S. at 678. The Court must dismiss the Complaint because it lacks 14 factual allegations. III. Leave to Amend 15 In accordance with the well-settled law in this Circuit, because “it is not ‘absolutely 16 clear’ that [Plaintiff] could not cure [the Complaint’s] deficiencies by amendment,” the 17 Court will grant him the opportunity to do so. See Jackson v. Barnes, 749 F.3d 755, 767 18 (9th Cir. 2014) (citations omitted); see also Lopez, 203 F.3d at 1131 (en banc) (internal 19 quotation marks and citations omitted) (holding that a pro se litigant must be given leave 20 to amend his complaint “if it appears at all possible that the plaintiff can correct the defect” 21 in the complaint); Fed. R. Civ. P. 15(a)(2) (leave to amend should be “freely” given “when 22 justice so requires[]”). 23 If Plaintiff wishes to pursue this suit, he must amend his Complaint by making 24 factual allegations showing he is entitled to relief. Plaintiff’s amended complaint should 25 follow the form detailed in Rule 7.1 of the Local Rules of Civil Procedure. There are 26 examples of different types of complaints in the Federal Rules of Civil Procedure’s 27 28 1 appendix of forms (forms 11–21).3 The Court also recommends Plaintiff review the 2 information available in the District Court’s Handbook for Self-Represented Litigants, 3 which is available online.4 4 To be clear, Plaintiff’s amended complaint “must articulate the exact legal 5 theory of relief for each cause of action [he is] asserting by explaining: (1) the law or 6 constitutional right [Plaintiff] believe[s] was violated; (2) the name of the party who 7 violated that law or right; (3) exactly what that party did or failed to do; (4) how that 8 action or inaction is connected to the violation of the law or any constitutional right; 9 and (5) the exact injury [Plaintiff] suffered as a result of that conduct. [Plaintiff] must 10 repeat this process for each theory underlying every specific cause of action.” 11 Casavelli v. Johanson, 2020 WL 4732145, at *10 (D. Ariz. Aug. 14, 2020). 12 Within thirty (30) days from the date of entry of this Order, Plaintiff may submit 13 an amended complaint. Plaintiff must clearly designate on the face of the document that it 14 is the “First Amended Complaint.” This complaint must be retyped or rewritten in its entirety and may not incorporate any part of the original Complaint by reference. 15 Plaintiff should know “an amended complaint supersedes the original complaint and 16 renders it without legal effect[.]” Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 17 2012) (en banc). After a plaintiff files an amended complaint, the Court treats the original 18 complaint as if it did not exist. Id. at 925. 19 V. Warning 20 21 Plaintiff is advised that if he elects to file an amended complaint but fails to comply 22 with the Court’s instructions explained in this Order, the action will be dismissed pursuant 23 to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure. 24 See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal with 25 prejudice of amended complaint that did not comply with Rule 8(a)). If Plaintiff fails to 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. 1 || prosecute this action, or if he fails to comply with the rules or any court order, the Court □□ may dismiss the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 3|| See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). 5 Accordingly, 6 IT IS HEREBY ORDERED that the Application to Proceed in District Court || Without Prepaying Fees or Costs (Doc. 2) is GRANTED. 8 IT IS FURTHER ORDERED that Plaintiff’s Complaint (Doc. 1) is dismissed with 9|| leave to file a First Amended Complaint within thirty (30) days of the date this Order is || entered; 11 IT IS FURTHER ORDERED that if Plaintiff does not file a First Amended 12 || Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court shall 13} dismiss this action without further order of this Court; and 14 IT IS FINALLY ORDERED that if Plaintiff elects to file a First Amended 15 || Complaint, it may not be served until and unless the Court issues an Order screening the 16 || amended complaint pursuant to 28 U.S.C. § 1915(e)(2). 17 Dated this 30th day of December, 2020. 18 19 oC. . fo 20 norable' Diang4. Huretewa 1 United States District Judge 22 23 24 25 26 27 28 _5-