Keefe v. Global Credit Union Bank ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Keefe, No. CV-23-01664-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Global Credit Union Bank, 13 Defendant. 14 15 Several weeks ago, Plaintiff started calling the chambers of the undersigned seeking 16 to have “orders” issued. Staff informed Plaintiff that there was no case pending before the 17 undersigned, or based on looking at the Court’s filing system, elsewhere in the district. 18 Plaintiff then mailed a document directly to the undersigned. The Clerk’s office returned 19 it to Plaintiff because the Clerk’s office also could not locate any pending case in which to 20 file the document. 21 Plaintiff then mailed two more packages of documents directly to the undersigned 22 (and continued calling chambers). These packages were delivered to the Clerk’s office. 23 The packages included: a civil cover sheet, a motion to proceed in forma pauperis, and 24 various other documents–none of which were called a “complaint.” Nonetheless, because 25 the civil cover sheet and the motion to proceed in forma pauperis could be construed as 26 Plaintiff attempting to open a new case, the Clerk’s office filed them into the above case 27 number and styled the “Letter of Administration Order” as a complaint for purposes of 28 opening a case. The undersigned was randomly drawn to preside over this case. The 1 undersigned does not know if Plaintiff has engaged in the direct calling and mailing tactic 2 with other judges in this district (or other districts). 3 The Court has reviewed Plaintiff’s application to proceed in forma pauperis and 4 finds that Plaintiff does not have the ability to pay. See Hymas v. U.S. Dep’t of the Interior, 5 73 F.4th 763, 768 (9th Cir. 2023) (discussing assets in the in forma pauperis analysis); 6 Escobedo v. Applebees, 787 F.3d 1226, 1234-36 (9th Cir. 2015) (discussing income versus 7 expenses in the in forma pauperis analysis). 8 Next, the Court must screen an in forma pauperis complaint to determine whether it 9 states a claim. 10 Congress provided with respect to in forma pauperis cases that a district court "shall dismiss the case at any time if the court determines" that 11 the "allegation of poverty is untrue" or that the "action or appeal" is "frivolous or malicious," "fails to state a claim on which relief may be 12 granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). While much of section 1915 outlines 13 how prisoners can file proceedings in forma pauperis, section 1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners. Lopez 14 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) ("section 1915(e) applies to all in forma pauperis complaints"). "It is also clear that section 1915(e) not only 15 permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim." Id. Therefore, this court must dismiss an in forma 16 pauperis complaint if it fails to state a claim or if it is frivolous or malicious. "[A] complaint, containing both factual allegations and legal conclusions, is 17 frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Furthermore, "a finding of factual 18 frivolousness is appropriate when the facts alleged rise to the level of the irrational or wholly incredible, whether or not there are judicially recognized 19 facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). "A case is malicious if it was filed with the intention or desire to 20 harm another." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). … 21 A claim must be stated clearly enough to enable a defendant to frame a responsive pleading. A complaint must contain "a short and plain statement 22 of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). "Each averment of a pleading shall be simple, concise, and direct." 23 Fed. R. Civ. P. 8(e)(1). A complaint having the factual elements of a cause of action present but scattered throughout the complaint and not organized 24 into a "short and plain statement of the claim" may be dismissed for failure to satisfy Rule 8(a). Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th 25 Cir. 1988). …In addition, to satisfy Rule 8, each claim must be stated in a separate 26 count. Bautista v. Los Angeles, 216 F.3d 837, 840-41 (9th Cir. 2000). 27 Kennedy v. Andrews, 2005 WL 3358205, *2-*3 (D. Ariz. 2005). 28 Here, Plaintiff did not even file a document called a “complaint” as is required under 2 1 Federal Rule of Civil Procedure 3. Further, Plaintiff named Global Credit Union Bank as 2 the defendant in the Letter of Administration Order; the United States as the defendant in 3 the civil cover sheet (Doc. 1-3 at 1); and Governor Hobbs as the defendant in a “proof of 4 service” (Doc. 1-2 at 5) included in this packet. Finally, nothing in all of Plaintiff’s filings 5 at Doc. 1 and the attachments thereto states a cognizable claim. 6 As a result, Doc. 1 (and the attachments thereto) will be stricken. Out of an 7 abundance of caution because Plaintiff used unredacted personal identifiers in these 8 documents (in violation of Federal Rule of Civil Procedure 5.2) Doc. 1 has been sealed in 9 its entirety. The Court will leave this document under seal, but stricken. Plaintiff is 10 cautioned, however, that any future filings in this case will NOT be sealed sua sponte. 11 Plaintiff will be given one opportunity to amend the complaint. Plaintiff must: 12 …make clear his allegations in short, plain statements with each claim for relief identified in separate sections. In the amended complaint, Plaintiff 13 must write out the rights he believes were violated, the name of the person who violated the right, exactly what that individual did or failed to do, how 14 the action or inaction of that person is connected to the violation of Plaintiff's rights, and what specific injury Plaintiff suffered because of the other 15 person's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Each claim of an alleged violation must be set forth in a separate count. Any 16 amended complaint filed by Plaintiff must conform to the requirements of Rules 8(a) and [(d)(1)] of the Federal Rules of Civil Procedure. 17 18 Kennedy, 2005 WL 3358205, *3. 19 Further, like the Plaintiff in Kennedy, 20 Plaintiff is warned that if he elects to file an amended complaint and if he fails to comply with the Court's instructions explained in this order, the 21 action will be dismissed pursuant to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure. See McHenry, 84 F.3d at 1177 22 (affirming dismissal with prejudice of prolix, argumentative, and redundant amended complaint that did not comply with Rule 8(a)); Nevijel v. North 23 Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming dismissal of amended complaint that was "equally as verbose, confusing, and 24 conclusory as the initial complaint"); Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir. 1965) (affirming dismissal without leave to amend second 25 complaint that was "so verbose, confused and redundant that its true substance, if any, [was] well disguised"). 26 27 Kennedy, 2005 WL 3358205, *3. 28 Based on the foregoing, 3 1 IT IS ORDERED that the motion to proceed in forma pauperis (Doc. 2) is granted. 2 IT IS FURTHER ORDERED that Doc. 1 is stricken for not being a complaint in 3 || compliance with Rule 3 of the Federal Rules of Civil Procedure. The Clerk of the Court 4|| shall leave Doc. | under seal. 5 IT IS FURTHER ORDERED that Plaintiff is given leave to file a complaint in 6 || this case which complies with the foregoing within 30 days. If Plaintiff fails to file a 7\| complaint within 30 days of the date of this Order, the Clerk of the Court shall enter 8 || judgment dismissing this case, without prejudice. 9 IT IS FINALLY ORDERED that if Plaintiff files a complaint, the Clerk of the 10 || Court shall not issue a summons and the complaint shall not be served until it has been 11 || screened by this Court. 12 Dated this 28th day of August, 2023. 13 14 A 15 16 _ James A. Teil Org Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28