Walker v. Phoenix, City of et al

Filing 51

ORDER granting 45 Defendant City of Phoenix's Motion to Dismiss with prejudice and denying 48 Plaintiff's Motion to Seal. The Clerk shall enter judgment in favor of Defendant and against Plaintiff, and that Plaintiff take nothing. The Clerk shall terminate this action. Signed by Judge Neil V Wake on 8/20/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV 11-01538-PHX-NVW

Janice Walker,
Plaintiff,

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ORDER

vs.
City of Phoenix, et al.,
Defendants.

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Before the Court is Defendant1 City of Phoenix’s Motion to Dismiss (Doc. 45).

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Defendant asserts Plaintiff’s complaint does not comply with the federal pleading

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standards and fails to state a plausible claim for relief. To state a claim for relief under

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Fed. R. Civ. P. 8(a), a plaintiff must make “‘a short and plain statement of the claim

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showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (citations omitted). This “short and plain statement” must also

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be “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). A claim is

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plausible if it contains “[f]actual allegations [sufficient] to raise a right to relief above the

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speculative level,” Twombly, 550 U.S. at 555, and to permit a reasonable inference that

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the defendant is liable for the conduct alleged, Iqbal, 556 U.S. at 678. “Threadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do

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not suffice.” Id. Rather, the plaintiff must at least “allege sufficient facts to state the

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elements of [the relevant] claim.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d

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The City of Phoenix is the only remaining defendant. (See Doc. 40.)

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1116, 1122 (9th Cir. 2008). Even where a complaint has the factual elements of a cause

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of action present but scattered throughout the complaint and not organized into a “short

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and plain statement of the claim,” it may be dismissed for failure to satisfy Rule 8(a).

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Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988).

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Plaintiff has failed to satisfy these pleading requirements. In her third amended

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complaint, Plaintiff continues to set forth her allegations in a rambling and incoherent

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manner that does not reasonably put Defendant on notice of the claims against it.

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Plaintiff has not listed separate claims for relief or clearly identified the legal theories or

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causes of action entitling her to relief. Defendant’s motion to dismiss will therefore be

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granted.

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Although leave to amend should be freely given “when justice so requires.” Fed.

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R. Civ. P. 15(a)(2), “[l]eave need not be granted where the amendment of the complaint

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would cause the opposing party undue prejudice ... or creates undue delay.” Ascon

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Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

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discretion to deny leave to amend a complaint is “especially broad” where the plaintiff

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already has had one or more opportunities to amend his complaint. Id. at 1161. “Leave to

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amend need not be given if a complaint, as amended, is subject to dismissal.” Moore v.

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Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). “Futility of amendment

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can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59

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F.3d 815, 845 (9th Cir. 1995). Plaintiff has already been given three opportunities to

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amend her complaint, and there is no basis for concluding that further amendment will

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correct the continuing deficiencies in her pleadings.

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Amended Complaint (Doc. 38) will be dismissed with prejudice.

The Court’s

Accordingly, Plaintiff’s Third

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Plaintiff’s Motion to Seal File (Doc. 48) does not show sufficient cause to warrant

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this matter being sealed and will be denied. Although she asks the court to seal “all

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private medical records and doctor letters of plaintiff” (id. at 1), no such records or letters

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are in the record.
IT IS THEREFORE ORDERED that Defendant City of Phoenix’s Motion to

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Dismiss (Doc. 45) is granted with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Seal File (Doc. 48) is

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denied.

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IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendant

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and against Plaintiff, and that Plaintiff take nothing. The Clerk shall terminate this

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action.
Dated this 20th day of August, 2012.

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