Barkclay v. Phoenix College et al

Filing 7

ORDER denying 1 Plaintiff's Request for Temporary Restraining Order, granting 3 Plaintiff's Motion for Leave to Proceed in forma pauperis and denying 5 Plaintiff's Motion to allow Electonic Filing. Plaintiff shall have until November 4, 2011, to filed an amended complaint. Signed by Judge David G Campbell on 10/17/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alexandria Barkclay,
Plaintiff,

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No. CV11-1968-PHX-DGC
ORDER

vs.
Phoenix College, et al.,
Defendant.

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Plaintiff Alexandria Barkclay has filed a complaint and a request for a temporary

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restraining order (“TRO”). Doc. 1. She has also filed a motion for leave to proceed in

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forma pauperis (Doc. 3), and a motion for leave to file documents electronically (Doc. 5).

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For the reasons that follow, the TRO and motion to file electronically will be denied, and

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the motion to proceed in forma pauperis will be granted.

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I.

Request for Temporary Restraining Order.

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Plaintiff seeks a TRO, but her filings do not show that Plaintiff has served or

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otherwise given notice of her request to Defendants. Under Rule 65 of the Federal Rules

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of Civil Procedure, a TRO may be entered without notice to Defendants only if the

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requirements of Rule 65(b)(1) have been satisfied. Plaintiff makes no attempt to show

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that these requirements have been satisfied.

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In addition, to obtain a TRO, a Plaintiff must show that she is likely to succeed on

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the merits, that she is likely to suffer irreparable harm in the absence of preliminary

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relief, that the balance of equities tips in her favor, and that an injunction is in the public

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interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 374 (2008).

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The test includes a sliding scale. If the plaintiff has shown that the balance of hardships

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tips sharply in her favor, she need not make as strong a showing of the likelihood of

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success on the merits – the existence of serious questions will suffice. Alliance for Wild

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Rockies v. Cotrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

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Plaintiff has filed a 31-page complaint and a 91-page memorandum of points and

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authorities. The nature of Plaintiff’s claims are not clearly identified, but she appears to

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complain about the termination of federal financial aid she was receiving in connection

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with her college education. Plaintiff appears to argue that her due process rights were

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violated because the notice she received prior to a hearing was insufficiently clear to

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enable her to prepare for the hearing. Plaintiff also asserts a long list of claims for

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negligence, negligent misrepresentation, breach of implied warranty, breach of contract,

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breach of the implied covenant of good faith and fair dealing, civil conspiracy, aiding and

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abetting, fraud, fraudulent concealment, intentional interference with contractual

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relations, slander, libel, false light invasion of privacy, abuse of process, abuse of power,

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and violations of various federal civil rights statutes. Plaintiff has not shown, however,

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that she is likely to succeed on the merits of these claims. Nor has she shown that the

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claims raise serious questions, a showing which requires a “fair chance” of success on the

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merits. Republic of the Philippians v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (en

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banc).

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Because Plaintiff has not provided notice to Defendants as required by Rule 65,

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and has not satisfied the requirements for obtaining a TRO, her request for a TRO is

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denied.

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II.

Request to Proceed In Forma Pauperis.

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Plaintiff’s motion to proceed in forma pauperis includes the Court’s required

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affidavit. Doc. 3. Having reviewed the affidavit, the Court will grant Plaintiff’s request

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and permit her to proceed in forma pauperis.

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III.

Motion to Allow Electronic Filing.
The Court, as a matter of standard operating policy, does not allow non-lawyers to

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file documents electronically. Plaintiff’s request is denied.

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IV.

Screening of Complaint.

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In in forma pauperis (“IFP”) proceedings, a district court “shall dismiss the case at

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any time if the court determines that . . . the action . . . fails to state a claim on which

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relief can be granted[.]” 28 U.S.C. § 1915(e)(2). While much of § 1915 concerns

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prisoner litigation, § 1915(e) applies to all IFP proceedings. Lopez v. Smith, 203 F.3d

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1122, 1126 n.7 (9th Cir. 2000) (en banc). “Section 1915(e)(2)(B)(ii) . . . allows a district

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court to dismiss[] sua sponte . . . a complaint that fails to state a claim[.]” Id. at 1130. “It

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is also clear that section 1915(e) not only permits but requires a district court to dismiss

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an in forma pauperis complaint that fails to state a claim.” Id. at 1127. A district court

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dismissing under § 1915(e)(2)(B)(ii) “should grant leave to amend even if no request to

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amend the pleading was made, unless it determines that the pleading could not possibly

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be cured by the allegation of other facts.” Id. at 1127-29 (citations omitted).

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Rule 8 of the Federal Rules of Civil Procedure provides that “[a] pleading that

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states a claim for relief must contain . . . a short and plain statement of the claim showing

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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This short and plain statement

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“need not contain detailed factual allegations; rather, it must plead ‘enough facts to state

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a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534

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F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

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(2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (“The

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plausibility standard . . . asks for more than a sheer possibility that a defendant has acted

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unlawfully”). When analyzing a complaint for failure to state a claim, “[a]ll allegations

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of material fact are taken as true.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996).

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Legal conclusions couched as factual allegations, however, are not given a presumption

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of truthfulness and “conclusory allegations of law and unwarranted inferences are not

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sufficient.”

Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).

Dismissal is

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appropriate where the complaint lacks a cognizable legal theory, lacks sufficient facts

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alleged under a cognizable legal theory, or contains allegations disclosing some absolute

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defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699

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(9th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, n.1 (9th Cir. 1997).

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Plaintiff’s complaint is lengthy and includes a long list of alleged wrongs, but the

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Court is unable to determine from the complaint precisely what actions Plaintiff is

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complaining about. Plaintiff’s complaint names several Defendants, but fails to state

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clearly what wrongs each Defendant is alleged to have committed and which claims are

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asserted against which Defendants. As a result, the Court cannot conclude that Plaintiff’s

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complaint asserts a viable claim against any particular Defendant.

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therefore will be dismissed for failure to state a claim upon which relief can be granted.

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V.

The complaint

Leave to Amend.

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In this circuit, “[a] pro se litigant must be given leave to amend his or her

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complaint unless it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir.

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1988) (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)); see also Lopez, 203

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F.3d at 1127-29 (§ 1915(e)(2)(B)(ii)’s mandated dismissal of an IFP complaint allows a

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district court to grant leave to amend); Waters v. Young, 100 F.3d 1437, 1441 (9th Cir.

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1996) (“As a general matter, this court has long sought to ensure that pro se litigants do

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not unwittingly fall victim to procedural requirements that they may, with some

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assistance from the court, be able to satisfy.”). The Court will dismiss the complaint

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without prejudice and allow Plaintiff to file an amended complaint, consistent with this

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order, that properly states a claim for relief.

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November 4, 2011, to file an amended complaint.

Plaintiff shall have until Friday,

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Plaintiff is advised that although she is proceeding IFP, she must become familiar

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with, and follow, the Federal Rules of Civil Procedure and the Rules of the United States

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District Court for the District of Arizona (“Local Rules”). See King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir.1986) (“Pro se litigants must follow the same rules of procedure that

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govern other litigants.”); Carter v. Comm'r of Internal Revenue, 784 F.2d 1006, 1008 (9th

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Cir.1986) (“Although pro se, [plaintiff] is expected to abide by the rules of the court in

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which he litigates.”). The Federal Rules of Civil Procedure are available at the following

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Internet website: www.law.cornell.edu/rules/frcp/. A copy of the Court's Local Rules of

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Civil Procedure may be obtained in the Clerk's Office and are available online at the

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Court's

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“Opinions/Orders/Rules”).

Internet

website:

www.azd.uscourts.gov

(follow

hyperlink

titled

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For purposes of the amended complaint, Plaintiff is directed to Rule 8 of the

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Federal Rules of Civil Procedure. Rule 8(a) provides that a complaint “must contain (1) a

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short and plain statement of the grounds for the court’s jurisdiction, . . . (2) a short and

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plain statement of the claim showing that the pleader is entitled to relief, and (3) a

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demand for the relief sought.” Fed. R. Civ. P. 8(a). These pleading requirements shall be

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set forth in separate and discrete paragraphs. Rule 8(d) provides that each such paragraph

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“must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).

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The “short and plain statement of the claim” required by Rule 8(a)(2) must not

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only designate a cause of action, but must also include enough factual allegations to

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render the claim plausible. Iqbal, 129 S. Ct. at 1950. If Plaintiff chooses to file an

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amended complaint asserting constitutional violations, her pleading should include a

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statement of the constitutional rights Plaintiff believes to have been violated, how each

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right was violated, how each Defendant contributed to the violation, and what injury was

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caused by each alleged constitutional violation. See Jimenez v. State of Arizona, No. CV-

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08-0892 (D. Ariz. May 22, 2008) (order dismissing with leave to amend). Such factual

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allegations must provide enough information to “allow[] the court to draw the reasonable

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inference that the defendant[s are] liable for the misconduct alleged.” Iqbal, 129 S. Ct. at

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1149.

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Plaintiff is further advised that she is responsible for having the summons and

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amended complaint properly served on each Defendant within the time allowed by

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Rule 4(m) of the Federal Rules of Civil Procedure.

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If Plaintiff fails to prosecute this action, or if she fails to comply with the rules or

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any Court order, the Court may dismiss the action with prejudice pursuant to Rule 41(b)

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of the Federal Rule of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th

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Cir.1992); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.1995).

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IT IS ORDERED:

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1.

Plaintiff’s request for a temporary restraining order (Doc. 1) is denied.

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2.

Plaintiff’s motion to proceed in forma pauperis (Doc. 3) is granted.

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3.

Plaintiff’s motion to allow electronic filing (Doc. 5) is denied.

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4.

Plaintiff shall have until November 4, 2011, to filed an amended

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complaint.
Dated this 17th day of October, 2011.

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