Timco v. Kircher

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

9 Kyle Timco, No. CV-22-01312-PHX-DJH 10 Plaintiff, ORDER v. Angela Kircher, et al., 13 Defendants.

15 Pending before the Court is Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Cost (Doc. 8). Upon review, Plaintiff's Application, signed under penalty of perjury, indicates that Plaintiff is financially unable to pay the filing fee.

18 The Court will grant the 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 such a review, “[i]t is . . . clear that section “While much of § 1915 outlines how prisoners can file proceedings in forma pauperis, 1915(e) not only permits but requires a district court to dismiss an [IFP] complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citation omitted).

4 Rule 8(a) of the Federal Rules of Civil Procedure require complaints to contain “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 14 556). 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.

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

5 II. Discussion 6 Based on the Complaint, the Court can only determine that Plaintiff’s claim arises out of a family law dispute in Maricopa County. He names several attorneys, a judge, and an adoption agency as the Defendants. Beyond the allegations that Defendants unlawfully harmed him, the Court cannot discern any plausible claim. Therefore, the Complaint will be dismissed for failing to state a claim.

11 III. Leave to Amend 12 In accordance with the well-settled law in this Circuit, because “it is not ‘absolutely clear’ that [Plaintiff] could not cure [the Complaint’s] deficiencies by amendment,” the Court will grant him the opportunity to do so. See Jackson v. Barnes, 749 F.3d 755, 767 (9th Cir. 2014) (citations omitted); see also Lopez, 203 F.3d at 1131 (en banc) (internal quotation marks and citations omitted) (holding that a pro se litigant must be given leave to amend his complaint “if it appears at all possible that the plaintiff can correct the defect” in the complaint); Fed. R. Civ. P. 15(a)(2) (leave to amend should be “freely” given “when justice so requires[]”).

20 Plaintiff’s complaint must be amended to address the deficiency identified above.

21 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 Each claim or cause of action must be set forth in a separate count. The amended complaint must also state why venue is proper in this District Court. The Court also recommends Plaintiff review the information 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/.

1 available in the District Court’s Handbook for Self-Represented Litigants, which is available online.4 3 To be clear, Plaintiff’s amended complaint “must articulate the exact legal theory of relief for each cause of action [he is] asserting by explaining: (1) the law or constitutional right [Plaintiff] believe was violated; (2) the name of 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 violation of the law or any constitutional right; and (5) the exact injury [Plaintiff] suffered as a result of that conduct. [Plaintiff] must repeat this process for each theory underlying every specific cause of action.” Casavelli v. Johanson, 2020 WL 10 4732145, at *10 (D. Ariz. Aug. 14, 2020).

11 The Court warns Plaintiff that to the extent that Plaintiff “asserts as a legal wrong an allegedly erroneous decision by a state court[] and seeks relief from a state court judgment based on that decision,” this Court lacks subject matter jurisdiction. Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). In other words, this Court is not the proper venue to appeal state court proceedings. Id. at 1155.

16 Plaintiff should also be aware that “an amended complaint supersedes the original complaint and renders it without legal effect[.]” Lacey v. Maricopa Cnty., 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.

20 Within thirty (30) days from the date of entry of this Order, Plaintiff may submit an amended complaint. Plaintiff must clearly designate on the face of the document that it 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.

24 V. Warning 25 Plaintiff is advised that if he 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 to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure.

28 4 The Handbook may be found at http://www.azd.uscourts.gov/handbook-self-represented- litigants.

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 he 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 || Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Ghazali v. Moran, 6|| 46 F.3d 52, 54 (9th Cir. 1995).

7 Accordingly, 8 IT IS HEREBY ORDERED that the Application to Proceed in District Court || Without Prepaying Fees or Costs (Doc. 2) is GRANTED.

10 IT IS FURTHER ORDERED that Plaintiff’s Complaint (Doc. 1) is dismissed with || leave to file a First Amended Complaint within thirty (30) days of the date this Order is entered; 13 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 16 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).

19 Dated this 8th day of August, 2022.

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