Shreeve v. Arizona Department of Public Safety ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mathew W Shreeve, No. CV-19-05864-PHX-DGC 10 Plaintiff, ORDER 11 v. 12 Arizona Department of Public Safety, et al., 13 Defendants. 14 15 16 On December 20, 2019, Plaintiff Mathew Shreeve filed a pro se civil rights 17 complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis 18 (“IFP”). Docs. 1, 2. The Court will grant Plaintiff’s application for IFP status, screen his 19 complaint, dismiss the complaint for failure to state a claim for relief, and grant Plaintiff 20 leave to file a first amended complaint. 21 I. Application to Proceed In Forma Pauperis and Filing Fee. 22 Plaintiff attaches an affidavit on a court-approved form which shows that he 23 receives a total monthly income of $250.00 and that he has monthly expenses totaling 24 $1,690.00. Doc. 2 at 1-2. It is clear from Plaintiff’s affidavit that he cannot pay or give 25 security for fees and costs and still provide himself with the necessities of life. See Adkins 26 v. E. I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1943). Plaintiff’s motion for IFP 27 status will be granted. 28 1 II. Screening of Complaints. 2 In IFP proceedings, a district court “shall dismiss the case at any time if the court 3 determines that . . . the action . . . fails to state a claim on which relief can be granted[.]” 4 28 U.S.C. § 1915(e)(2). Although most § 1915 applications concern prisoner litigation, 5 § 1915(e) applies to all IFP proceedings. See Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th 6 Cir. 2000) (en banc). “Section 1915(e)(2)(B)(ii) . . . allows a district court to dismiss[ ] sua 7 sponte . . . a complaint that fails to state a claim[.]” Id. at 1130. “It is also clear that section 8 1915(e) not only permits but requires a district court to dismiss an in forma pauperis 9 complaint that fails to state a claim.” Id. at 1127. A district court dismissing under this 10 section “should grant leave to amend even if no request to amend the pleading was made, 11 unless it determines that the pleading could not possibly be cured by the allegation of other 12 facts.” Id. at 1127-29 (citations omitted). 13 A pleading must contain a “short and plain statement of the claim showing that the 14 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 15 not demand detailed factual allegations, “it demands more than an unadorned, the- 16 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 17 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 18 conclusory statements, do not suffice.” Id. 19 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 20 claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 21 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that 22 allows the court to draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 24 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 25 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 26 allegations may be consistent with a constitutional claim, a court must assess whether there 27 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 28 1 If the Court determines that a pleading could be cured by the allegation of other 2 facts, a pro se litigant is entitled to an opportunity to amend a complaint. See Lopez, 203 3 F.3d at 1127-29. Plaintiff’s complaint will be dismissed for failure to state a claim, but 4 because it may possibly be amended to state a claim, the Court will dismiss it with leave 5 to amend. 6 III. Plaintiff’s Complaint. 7 In his complaint, Plaintiff sues the Arizona Department of Public Safety (“DPS”) 8 and the Arizona Department of Administration. Doc. 1. Plaintiff appears to assert claims 9 relating to loss of potential wages, retirement assets, and quality of life due to an error in 10 DPS records. Id. at 5. He seeks more than $1 million in monetary damages. Id. The 11 complaint includes two handwritten pages listing what appear to be claims relating to 12 Plaintiff’s “record” but he fails to identify what the “record” is or how Defendant’s conduct 13 has harmed him. 14 IV. Failure to State a Claim. 15 To prevail in a § 1983 claim, a plaintiff must show that the defendants took actions 16 under color of state law that deprived him of federal rights, privileges or immunities and 17 caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 18 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 19 1284 (9th Cir. 1994)). In addition, the plaintiff must allege that he suffered a specific injury 20 as a result of the conduct of a particular defendant and he must allege an affirmative link 21 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 22 72, 377 (1976). Plaintiff’s vague and conclusory allegations are insufficient to support a 23 conclusion that Defendants took specific actions that have harmed Plaintiff. 24 V. Leave to Amend. 25 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 26 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 27 amended complaint to cure the deficiencies outlined above. 28 Plaintiff must clearly designate on the face of the document that it is the “First 1 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 2 entirety and may not incorporate any part of the original complaint by reference. 3 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 4 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 5 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original complaint 6 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 7 original complaint and that was voluntarily dismissed or was dismissed without prejudice 8 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 9 F.3d 896, 928 (9th Cir. 2012) (en banc). 10 VI. Warnings 11 A. Address Changes. 12 Plaintiff must file and serve a notice of any change of address in accordance with 13 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for 14 other relief with a notice of change of address. Failure to comply may result in dismissal 15 of this action. 16 B. Possible Dismissal. 17 If Plaintiff fails to prosecute this action or to comply with the rules or any Court 18 order, the Court may dismiss the action with prejudice pursuant to Federal Rule of Civil 19 Procedure 41(b). See Ferdik, at 1260-61 (holding that the district court did not abuse its 20 discretion in dismissing a pro se plaintiff’s complaint for failing to comply with a court 21 order). 22 C. Plaintiff Must Become Familiar With the Rules. 23 Plaintiff is advised that he must become familiar with, and follow, the Federal Rules 24 of Civil Procedure and the Rules of the United States District Court for the District of 25 Arizona (“Local Rules”), which may be obtained in the Clerk of Court’s office. For 26 purposes of the amended complaint, Plaintiff is directed to Rule 8 of the Federal Rules of 27 Civil Procedure. Rule 8(a) provides that a complaint “must contain (1) a short and plain 28 statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement of 1 || the claim showing that the pleader is entitled to relief, and (3) a demand for the relief 2|| sought.” Fed. R. Civ. P. 8(a). These pleading requirements shall be set forth in separate 3|| and discrete paragraphs. Rule 8(d) provides that each such paragraph “must be simple, 4|| concise, and direct.” Fed. R. Civ. P. 8(d)(1). 5|| IT IS ORDERED: 6 (1) Plaintiffs application to proceed in forma pauperis (Doc. 2) is granted. 7 (2) | The complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 8 || shall file his amended complaint on or before March 6, 2020 in compliance with this 9|| Order. 10 (3) — If Plaintiff fails to file an amended complaint on or before March 6, 2020, 11 || the Clerk of Court must, without further order of the Court, enter a judgment of dismissal of this action with prejudice and deny any pending unrelated motions as moot. 13 Dated this 4th day of February, 2020. 14 15 . 16 » aed ©, Car pLlhel 17 David G. Campbell 18 Senior United States District Judge 19 20 21 22 23 24 25 26 27 28 _5-