Juniel v. Labcorp
Filing
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ORDER - IT IS ORDERED: 1. Plaintiff's motion for appointment of counsel (Doc. 11) is denied. 2. Plaintiff's emergency motions preventing Defendants from terminating her as a patient (Docs. 10, 12) are denied. 3. Plaintiff's complaint(s) are denied without prejudice. Plaintiff may file a single amended complaint on or before January 4, 2013. Signed by Judge David G Campbell on 12/14/12.(LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Joyce Juniel,
Plaintiff,
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v.
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Labcorp, Anasazi Internal Medicine,
Defendants.
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No. CV12-1539 PHX DGC
CV12-1540 PHX DGC
CV12-1541 PHX DGC
(Consolidated)
ORDER
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Plaintiff Joyce Juniel has filed complaints against Defendants Labcorp and Anasazi
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Internal Medicine. The complaints have been consolidated in this action, and the Court
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granted in forma pauperis (“IFP”) status to Plaintiff. Docs. 6, 9. The Court has an obligation
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to screen Plaintiff’s complaints pursuant to 28 U.S.C. § 1915(e)(2). Because Plaintiff’s
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complaints fail to state a jurisdictional basis for this action, the Court will dismiss them sua
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sponte and grant leave to amend. Plaintiff’s other pending motions will also be denied.
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I.
Screening of Plaintiff’s Complaints.
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In IFP proceedings, a district court “shall dismiss the case at any time if the court
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determines that . . . the action . . . fails to state a claim on which relief can be granted[.]” 28
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U.S.C. § 1915(e)(2). While much of § 1915 concerns prisoner litigation, § 1915(e) applies
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to all IFP proceedings. Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (en banc).
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“Section 1915(e)(2)(B)(ii) . . . allows a district court to dismiss[] sua sponte . . . a complaint
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that fails to state a claim[.]” Id. at 1130. “It is also clear that section 1915(e) not only
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permits but requires a district court to dismiss an in forma pauperis complaint that fails to
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state a claim.” Id. at 1127. A district court dismissing under § 1915(e)(2)(B)(ii) “should
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grant leave to amend even if no request to amend the pleading was made, unless it determines
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that the pleading could not possibly be cured by the allegation of other facts.” Id. at 1127-29
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(citations omitted).
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Plaintiff’s complaints do not adequately allege subject matter jurisdiction as required
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by Rule 8(a)(1) of the Federal Rules of Civil Procedure. “Federal courts are courts of limited
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jurisdiction. They possess only that power authorized by Constitution and statute[.]”
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Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to federal
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statutes, this Court has subject matter jurisdiction over a case only if it arises under federal
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law or the amount in controversy exceeds $75,000 and the parties are citizens of different
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states. See 28 U.S.C. §§ 1331, 1332(a). The complaints do not explain why this Court has
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subject matter jurisdiction. The Court will dismiss the complaints without prejudice.
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Plaintiff shall have until January 4, 2013, to file a single amended complaint.
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Plaintiff is advised that she must become familiar with, and follow, the Federal Rules
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of Civil Procedure and the Rules of the United States District Court for the District of
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Arizona (“Local Rules”), which may be obtained in the Clerk of Court’s office. For purposes
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of the amended complaint, Plaintiff is directed to Rule 8 of the Federal Rules of Civil
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Procedure. Rule 8(a) provides that a complaint must contain (1) a short and plain statement
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of the grounds for the court’s jurisdiction, (2) a short and plain statement of the claim
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showing that the pleader is entitled to relief, and (3) a demand for the relief sought. Fed. R.
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Civ. P. 8(a). These pleading requirements shall be set forth in separate and discrete
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paragraphs. Rule 8(d) provides that each such paragraph “must be simple, concise, and
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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 only
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designate a cause of action, but must also include enough factual allegations to render the
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claim plausible.
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well-pleaded facts do not permit the court to infer more than the mere possibility of
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misconduct, the complaint has alleged – but it has not “show[n]” – “that the pleader is
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (“But where the
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entitled to relief.”) (citing Fed. R. Civ. P. 8(a)(2)). Plaintiff’s amended complaint should
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include a statement of the legal rights Plaintiff believes to have been violated, how each right
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was violated, how each Defendant contributed to the violation, and what injury was caused
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by each alleged violation. See Jimenez v. State of Arizona, No. CV-08-0892 (D. Ariz. May
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22, 2008) (order dismissing with leave to amend). Such factual allegations must provide
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enough information to “allow[] the court to draw the reasonable inference that the
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defendant[s are] liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1149.
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II.
Motion for Appointment of Counsel.
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Plaintiff asks the Court to appoint counsel. Doc. 11. There is no constitutional right
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to appointed counsel in a civil case. See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d
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266, 269 (9th Cir. 1982). The Court, however, does have the discretion to appoint counsel
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in “exceptional circumstances.” See 28 U.S.C. § 1915(e)(1); Wilborn v. Escalderon, 789
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F.2d 1328, 1331 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). “A
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finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success
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on the merits and the ability of the petitioner to articulate his or her claim pro se in light of
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the complexity of the legal issues involved.’” Wilborn, 789 F.2d at 1331(quoting Weygant
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v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see Richards v. Harper, 864 F.2d 85, 87 (9th
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Cir. 1988). “Neither of these factors is dispositive and both must be viewed together before
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reaching a decision on request of counsel” under section 1915(e)(1). Wilborn, 789 F.2d at
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1331.
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Having considered both factors, the Court finds that Plaintiff has not demonstrated a
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likelihood of success on the merits or that any difficulty she is experiencing in attempting to
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litigate her case is due to the complexity of the issues involved. Accordingly, this case does
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not present “exceptional circumstances” requiring the appointment of counsel.
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However, Plaintiff may contact the following organization to determine whether it
has an attorney available to represent Plaintiff pro bono or at a reduced rate:
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Volunteer Lawyers Program
305 South Second Avenue
P.O. Box 21538
Phoenix, Arizona 85036-1538
(602) 258-3434
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III.
Motions for Emergency Orders.
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Plaintiff has filed two motions asking the Court to enter emergency orders preventing
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Defendants from terminating her as a patient. Docs. 10, 12. The motions will be denied for
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several reasons. First, as noted above, Plaintiff has not shown that this Court has jurisdiction
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over her claim. Second, Plaintiff has not served Defendants as required by Rule 4(m) of the
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Federal Rules of Civil Procedure. Third, Plaintiff has not satisfied the requirements of
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Rule 65 of the Federal Rules of Civil Procedure for obtaining emergency injunctive relief.
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IV.
Warning.
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If Plaintiff fails to prosecute this action or to comply with the rules or any Court order,
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the Court may dismiss the action with prejudice pursuant to Federal Rule of Civil Procedure
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41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.1992) (holding that the
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district court did not abuse its discretion in dismissing a pro se plaintiff’s complaint for
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failing to comply with a court order).
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IT IS ORDERED:
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1.
Plaintiff’s motion for appointment of counsel (Doc. 11) is denied.
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2.
Plaintiff’s emergency motions preventing Defendants from terminating her as
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a patient (Docs. 10, 12) are denied.
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Plaintiff’s complaint(s) are denied without prejudice. Plaintiff may file a single
amended complaint on or before January 4, 2013.
DATED this 14th day of December, 2012.
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