Tauscher v. Donison ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jacqueline M Tauscher, No. CV-20-02014-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Pamela Donison, et al., 13 Defendants. 14 15 16 Pending before the Court is Defendants State Bar of Arizona, Maret Vessella, 17 Stephen P. Little and Matt McGregor (collectively Defendants)’ Motion for Statutory 18 Screening of Plaintiff’s First Amended Complaint and Second Amended Complaint 19 (Doc. 19). For the Following reasons, the motion is granted. Pursuant to that screening, 20 Plaintiff’s Second Amended Complaint (Doc. 18) is dismissed with leave to amend. 21 DISCUSSION 22 I. Legal Standard 23 In in forma pauperis (“IFP”) proceedings, a district court “shall dismiss the case at 24 any time if the court determines that . . . the action . . . fails to state a claim on which relief 25 can be granted[.]” 28 U.S.C. § 1915(e)(2). Although most IFP applications under § 1915 26 concern prisoner litigation, § 1915(e)(2) applies to all IFP proceedings. See Lopez v. Smith, 27 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (en banc). Section 1915(e)(2) “allows a district 28 court to dismiss[ ] sua sponte . . . a complaint that fails to state a claim[.]” Id. at 1130. 1 Indeed, § 1915(e)(2) “not only permits but requires a district court to dismiss an [IFP] 2 complaint that fails to state a claim.” Id. at 1127. A district court dismissing under 3 § 1915(e)(2) “should grant leave to amend even if no request to amend the pleading was 4 made, unless it determines that the pleading could not possibly be cured by the allegation 5 of other facts.” See Lopez, 203 F.3d at 1127–29. 6 A pleading must contain a “short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 does not require detailed 8 factual allegations, “it demands more than an unadorned, the-defendant-unlawfully- 9 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals 10 of the elements of a cause of action, supported by mere conclusory statements, do not 11 suffice.” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to 12 ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 13 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 14 that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. 16 II. Plaintiff’s Third Amended Complaint 17 Plaintiff filed a Second Amended Complaint on November 30, 2020, (Doc. 18), 18 which is now the operative complaint in this matter. See Ferdik v. Bonzelet, 963 F.2d 1258, 19 1262 (9th Cir. 1992) (“[A]fter amendment the original pleading no longer performs any 20 function and is treated thereafter as non-existent[.]”) (citation and quotation omitted). 21 Plaintiff’s first complaint was dismissed in part because, although she alleged 22 various violations of the law, she did not allege which defendants violated those laws. 23 Judge Humetewa explained: 24 The Complaint alleges violations of various laws, but it does not allege with specificity which Defendants violated those laws. Simply listing laws and 25 alleging that they were violated does not draw an inference that a particular 26 defendant violated the law. Plaintiff must understand that, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 27 statements, do not suffice.” . . . 28 1 Plaintiff’s amended complaint “must articulate the exact legal theory of relief for each cause of action [she is] asserting by explaining: (1) the law 2 or constitutional right [Plaintiff] believe was violated; (2) the name of 3 the party who violated that law or right; (3) exactly what that party did or failed to do; (4) how that action or inaction is connected to the 4 violation of the law or any constitutional right; and (5) the exact injury 5 [Plaintiff] suffered as a result of that conduct. 6 (Doc. 5 at 3, 5.) 7 Plaintiff’s Second Amended Complaint contains the same deficiencies. In her 8 pleading, Plaintiff names 67 Defendants. (Doc. 18 at 1–6.) She does not allege, however, 9 which of these defendants committed which legal wrongs she alleges. Nor does she allege 10 specific actions taken by the Defendants. Conclusory allegations of wrongdoing are 11 insufficient to show that Defendants have violated Plaintiff’s rights. To prevail in her claim, 12 Plaintiff must allege an affirmative link between her injury and the conduct of a particular 13 Defendant. Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976). 14 III. Leave to Amend 15 Plaintiff may amend her complaint if she chooses. In the amended complaint, 16 Plaintiff must state what rights she believes were violated. See id. Each claim of an alleged 17 violation must be set forth in a separate count. The amended complaint must also state the 18 name of the party who violated each law or right alleged and what that party did or failed 19 to do to violate that right. Any amended complaint filed by Plaintiff must conform to the 20 requirements of Rule 8(a) and (d)(1) of the Federal Rules of Civil Procedure. 21 Plaintiff is advised that if she elects to file a third amended complaint and if she fails 22 to comply with the Court’s instructions explained in this Order, the action will be dismissed 23 pursuant to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil 24 Procedure. See McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996) (affirming 25 dismissal with prejudice of amended complaint that did not comply with Rule 8(a)); 26 Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir. 1965) (affirming dismissal without leave to 27 amend second complaint that was “so verbose, confused and redundant that its true 28 substance, if any [was] well disguised”). 1 IT IS THEREFORE ORDERED that Defendants’ Motion to Screen (Doc. 19) is 2 GRANTED. 3 IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1915(e)(2) Second 4 Amended Complaint (Doc. 18) is dismissed for failure to comply with Rule 8, with leave 5 to file an amended complaint within 30 days of the date of this Order. 6 IT IS FURTHER ORDERED that if Plaintiff elects not to file a third amended 7 complaint within 30 days of the date of this Order, the Clerk of Court shall dismiss without 8 prejudice and terminate this action without further order of the Court. 9 IT IS FURTHER ORDERED that if Plaintiff elects to file a third amended 10 complaint, the complaint may not be served until and unless the Court screens the third 11 amended complaint pursuant to 18 U.S.C. § 1915(e)(2). 12 IT IS FURTHER ORDERED that, in light of the dismissal of the Second 13 Amended Complaint (Doc. 18) the Motion for Extension of Time to Answer (Doc. 21) is 14 DENIED as moot. 15 IT IS FURTHER ORDERED that Defendants Maricopa County Board of 16 Supervisors, Montgomery, Mitchell, and Adel’s Motion to Dismiss Plaintiff’s First 17 Amended Complaint (Doc. 27) is DENIED as moot. 18 IT IS FURTHER ORDERED that Plaintiff’s Motion for Service by U.S. Marshal- 19 All Defendants (Doc. 28) is DENIED as moot. 20 IT IS FURTHER ORDERED that State Defendants’ Request for Extension of 21 Time to Respond to Plaintiff’s Complaint Until the Court Issues its 28 U.S.C. 22 § 1915(E)(2)(B) Screening Order (Doc. 31) is DENIED as moot. 23 IT IS FURTHER ORDERED that Defendant Bill Morin’s Joinder to State Bar 24 Defendants’ Motion for Statutory Screening Of Plaintiff’s First Amended Complaint 25 (Doc. 13) and Second Amended Complaint (Doc. 16), (Doc. 33), is GRANTED. 26 / / / 27 / / / 28 1 IT IS FURTHER ORDERED that Defendant Bill Morin’s Motion to Dismiss the || Second Amended Complaint (Doc. 34) is DENIED as moot. 3 Dated this 14th day of April, 2021. : Wars ) 5 A Whacrsay Sooo) 6 Chief United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-