de Jesus v. UnitedHealth Group

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Myrna de Jesus, No. CV-22-00532-PHX-DJH 10 Plaintiff, ORDER v. UnitedHealth Group, 13 Defendant.

15 Pending before the Court is Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Cost (Doc. 6). Upon review, Plaintiff’s Application, signed under penalty of perjury, indicates that she is financially unable to pay the filing fee. The Court will grant Plaintiff’s Application and allow him to proceed in forma pauperis (“IFP”). Pursuant to 28 U.S.C. § 1915(e)(2), the Court will proceed to screen Plaintiff’s Complaint (Doc. 1).

21 I. Legal Standard 22 When a party has been granted IFP status, the Court must review the complaint to 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 “While much of § 1915 outlines how prisoners can file proceedings in forma pauperis, 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 statement of the claim showing that the pleader is entitled to relief.” While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).2 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference 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 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 enhancement.” Id. at 557.

17 The Court must accept all well-pleaded factual allegations as true and interpret the facts in the light most favorable to the plaintiff. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). That rule does not apply, however, to legal conclusions. Iqbal, 556 U.S. at 678. The Court is mindful that it must “construe pro se filings liberally when §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) (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. 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.

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 a complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A since Iqbal discusses the 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) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)).

3 II. Discussion 4 Plaintiff alleges that she was hired to work for Defendant United Health Group.

5 (Doc. 1 at 1). She alleges that Defendant falsely claimed she “screamed loudly and cursed at everyone inside the hospital for no reason” and that Defendant terminated her employment. (Id. at 4). The Court infers two causes action; defamation, and breach of contract. (Id.) (“Defendant defamed Plaintiff; defendant recklessly slandered plaintiff . . .

9 . Defendant made the following breaches . . . .).

10 To bring a claim for defamation, a plaintiff must show the defendant published a false and defamatory communication and that the defendant “(a) knows that the statement is false and it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.” Rowland v. Union Hills Country Club, 757 P.2d 14 105, 110 (Ariz. Ct. App. 1988) (citation omitted). To be published, a communication must be made to a third party. Dube v. Likins, 167 P.3d 93, 104 (Ariz. Ct. App. 2007). The Court can reasonably infer from Plaintiff’s Complaint that she alleges Defendant recklessly made a false statement about her. However, the Court cannot determine whether or how Defendants published this statement to a someone besides Plaintiff or Defendant. While Plaintiff may have received the statement, it is uncertain whether anyone else besides Defendant did. Therefore, the Court will dismiss Plaintiff’s defamation claim.

21 To bring a claim for breach of contract, a plaintiff must show the existence of a contract, the breach of that contract, and subsequent damages. First Am. Title Ins. Co. v. Johnson Bank, 372 P.3d 292, 297 (Ariz. 2016). Although Plaintiff makes shows she has been harmed, through her termination, she does not show what specific contractual agreement has been breached. Therefore, the Court will dismiss Plaintiff’s breach of contract claim.

27 III. Leave to Amend 28 Because the Court has dismissed both of Plaintiff’s Claims, it will dismiss the Complaint and grant leave for Plaintiff to file a first amended complaint within thirty (30) days from the date of entry of this Order. See Fed. R. Civ. P. 15(a)(2) (stating that leave to amend should be “freely” given “when justice so requires”).

4 If Plaintiff files another complaint, she must clearly designate on the face of the document that it is the “First Amended Complaint.” Plaintiff should tell her case’s story in a short and plain manner then state each claim or cause of action a separate count, alleging facts that that satisfy all of the elements of the claims she is brining. For example, she must allege the fact that the defamatory statements were published to a third party and specifying the existence of a contract whose particular terms prohibit Defendant’s actions.

10 Plaintiff’s amended complaint should follow the form detailed in Rule 7.1 of the Local Rules of Civil Procedure (“LRCiv”). Examples of different types of complaints demonstrating the proper form can be found in the appendix of forms that is contained with the Federal Rules of Civil Procedure (forms 11–21).3 This amended complaint must be retyped or rewritten in its entirety and may not incorporate any part of the original Complaint by reference. It must also clearly state the grounds for this Court’s jurisdiction, either by bringing a federal cause of action or by showing how the Court may exercise its diversity jurisdiction. See Fed. R. Civ. P. 8(a)(1).

18 The Court recommends Plaintiff review the information available in the District Court’s Handbook for Self-Represented Litigants, which is available online.4 Plaintiff should also be aware that “an amended complaint supersedes the original complaint and renders it without legal effect[.]” Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Thus, after amendment, the Court will treat an original complaint as nonexistent. Id. at 925.

24 / / / 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 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.

I. Warning 2 Plaintiff is advised that if she elects to file an amended complaint but fails to comply || with the Court’s instructions explained in this Order, the action will be dismissed pursuant 4|| to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure.

5|| See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal with || prejudice of amended complaint that did not comply with Rule 8(a)). If Plaintiff fails to || prosecute this action, or if she fails to comply with the rules or any court order, the Court || may dismiss the action with prejudice pursuant to Rule 41(b) of the Federal Rule of Civil 9|| Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

11 Accordingly, 12 IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in District || Court Without Prepaying Fees or Costs (Doc. 6) is GRANTED.

14 IT IS FURTHER ORDERED that Plaintiffs Complaint (Doc. 1) is dismissed with || leave to file a First Amended Complaint within thirty (30) days of the date this Order is entered.

17 IT IS FURTHER ORDERED that if Plaintiff does not file a First Amended || Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court shall dismiss this action without further order of this Court; and 20 IT IS FINALLY ORDERED that if Plaintiff elects to file a First Amended || Complaint, it may not be served until and unless the Court issues an Order screening the || amended complaint pursuant to 28 U.S.C. § 1915(e)(2).

23 Dated this 5th day of May, 2022.

25 oC. . fo □ 26 norable'Diang4. Huretewa United States District Judge _5-