Riethmiller v. Unknown Parties

Filing 6

ORDER denying 1 Motion for declaratory orders and an interdict. Plaintiff shall file an amended complaint within 30 days of the date of this Order. If Plaintiff fails to comply, the Clerk shall enter judgment of dismissal, without prejudice, for failure to comply with a Court order. Signed by Judge James A Teilborg on 9/27/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Annamarie D. Reithmiller,
Plaintiff,

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vs.

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Electors for the State,
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Defendant.
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No. CV 12-2034-PHX-JAT
ORDER

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Pending before the Court is Plaintiff’s motion to proceed in forma pauperis. Before

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the Court orders service of an in forma pauperis complaint, the Court may screen the

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complaint. Specifically:

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A. 28 U.S.C. § 1915(e)(2)

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Congress provided with respect to in forma pauperis cases that a district court
"shall dismiss the case at any time if the court determines" that the "allegation
of poverty is untrue" or that the "action or appeal" is "frivolous or malicious,"
"fails to state a claim on which relief may be granted," or "seeks monetary
relief against a defendant who is immune from such relief." 28 U.S.C. §
1915(e)(2). While much of section 1915 outlines how prisoners can file
proceedings in forma pauperis, section 1915(e) applies to all in forma pauperis
proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000)("section 1915(e) applies to all in forma pauperis
complaints"). "It is also clear that section 1915(e) not only permits but
requires a district court to dismiss an in forma pauperis complaint that fails to
state a claim." Id. Therefore, this court must dismiss an in forma pauperis
complaint if it fails to state a claim or if it is frivolous or malicious.

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"[A] complaint, containing both factual allegations and legal conclusions, is
frivolous where it lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Furthermore, "a finding of factual

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frivolousness is appropriate when the facts alleged rise to the level of the
irrational or wholly incredible, whether or not there are judicially recognized
facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33
(1992). "A case is malicious if it was filed with the intention or desire to harm
another." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

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B. Rule 8, Federal Rules of Civil Procedure

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A claim must be stated clearly enough to enable a defendant to frame a
responsive pleading. A complaint must contain "a short and plain statement
of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a).
"Each averment of a pleading shall be simple, concise, and direct." Fed. R.
Civ. P. 8(e)(1). A complaint having the factual elements of a cause of action
present but scattered throughout the complaint and not organized into a "short
and plain statement of the claim" may be dismissed for failure to satisfy Rule
8(a). Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988).
In order to assist litigants to understand the Rule 8(e) requirements that
averments "be simple, concise, and direct," Rule 84 of the Federal Rules of
Civil Procedure provides samples in an Appendix of Forms, which are
"intended to indicate the simplicity and brevity of statement which the rules
contemplate." McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). An
example is Form 9 (Complaint for Negligence):
1. Allegation of jurisdiction
2. On June 1, 1936, in a public highway called Boylston Street in Boston,
Massachusetts, defendant negligently drove a motor vehicle against plaintiff,
who was then crossing said highway.
3. As a result plaintiff was thrown down and had his leg broken, and was
otherwise injured, was prevented from transacting his business, suffered great
pain of body and mind, and incurred expenses for medical attention and
hospitalization in the sum of one thousand dollars.
4. Wherefore plaintiff demands judgment against defendant in the sum of ____
dollars and costs.
Id. "This complaint fully sets forth who is being sued, for what relief, and on
what theory, with enough detail to guide discovery. It can be read in seconds
and answered in minutes." Id. In addition, to satisfy Rule 8, each claim must
be stated in a separate count. Bautista v. Los Angeles, 216 F.3d 837, 840-41
(9th Cir. 2000).

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Kennedy v. Andrews, 2005 WL 3358205, *2-*3 (D. Ariz. 2005).

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In this case, Plaintiff’s initial filing, which she calls “motion for declaratory orders and

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an interdict,” fails to meet the requirements of Rule 8. It appears, although it is unclear, that

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Plaintiff is seeking to enjoin the electors for the state of Arizona from casting a vote for

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President Obama because he is not a natural born citizen. Plaintiff further appears to be

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bringing this action on behalf of herself and 649 other patients of a psychiatrist in Florida,

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whose licence Plaintiff claims was fraudulent. The Court cannot determine how this list of

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Plaintiffs is related to the claims against the electors of the state of Arizona.

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When a complaint fails to meet the requirements of Rule 8, and other factors are
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present, the Court should grant leave to amend. Bonanno v. Thomas, 309 F.2d 320, 322 (9th

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Cir. 1962). Although the Court is not convinced that Plaintiff can cure the deficiencies in her

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original complaint, the Court will nonetheless give Plaintiff ONE opportunity to amend the

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complaint. Plaintiff must:
make clear [her] allegations in short, plain statements with each claim for relief
identified in separate sections. In the amended complaint, Plaintiff must write
out the rights [s]he believes were violated, the name of the person who
violated the right, exactly what that individual did or failed to do, how the
action or inaction of that person is connected to the violation of Plaintiff's
rights, and what specific injury Plaintiff suffered because of the other person's
conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Each claim
of an alleged violation must be set forth in a separate count. Any amended
complaint filed by Plaintiff must conform to the requirements of Rules 8(a)
and [(d)(1)] of the Federal Rules of Civil Procedure.

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Kennedy, 2005 WL 3358205, *3 (D. Ariz. 2005).
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Further, like the Plaintiff in Kennedy,
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Plaintiff is warned that if [s]he elects to file an amended complaint
and if [s]he 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. See McHenry,
84 F.3d at 1177 (affirming dismissal with prejudice of prolix, argumentative,
and redundant amended complaint that did not comply with Rule 8(a)); Nevijel
v. North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981)(affirming
dismissal of amended complaint that was "equally as verbose, confusing, and
conclusory as the initial complaint"); Corcoran v. Yorty, 347 F.2d 222, 223
(9th Cir. 1965)(affirming dismissal without leave to amend second complaint
that was "so verbose, confused and redundant that its true substance, if any,
[was] well disguised").

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Kennedy, 2005 WL 3358205, *3 (D. Ariz. 2005) (emphasis added).

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s motion for declaratory orders and an interdict (Doc.

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1) is denied.

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IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint within

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30 days of the date of this Order. If Plaintiff fails to file an amended complaint within 30

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days, the Clerk of the Court shall enter judgment of dismissal, without prejudice, for failure

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to comply with a Court order.

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DATED this 27th day of September, 2012.

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