Riethmiller v. Unknown Parties

Filing 8

ORDER that this case is dismissed, with prejudice, for the reasons stated in this order, and the Clerk of the Court shall enter judgment accordingly. Denying 3 Plaintiff's Motion for Leave to Proceed in forma pauperis. Signed by Judge James A Teilborg on 11/6/12.(DMT)

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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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On September 28, 2012, the Court issued the following Order:

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Pending before the Court is Plaintiff’s motion to proceed in forma
pauperis. Before the Court orders service of an in forma pauperis complaint,
the Court may screen the complaint. Specifically:

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A.

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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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28 U.S.C. § 1915(e)(2)

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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 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.

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Rule 8, Federal Rules of Civil Procedure

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).
Kennedy v. Andrews, 2005 WL 3358205, *2-*3 (D. Ariz. 2005).
In this case, Plaintiff’s initial filing, which she calls “motion for
declaratory orders and an interdict,” fails to meet the requirements of Rule 8.
It appears, although it is unclear, that Plaintiff is seeking to enjoin the electors
for the state of Arizona from casting a vote for President Obama because he
is not a natural born citizen. Plaintiff further appears to be bringing this action
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on behalf of herself and 649 other patients of a psychiatrist in Florida, whose
licence Plaintiff claims was fraudulent. The Court cannot determine how this
list of 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 present, the Court should grant leave to amend. Bonanno v.
Thomas, 309 F.2d 320, 322 (9th Cir. 1962). Although the Court is not
convinced that Plaintiff can cure the deficiencies in her original complaint, the
Court will nonetheless give Plaintiff ONE opportunity to amend the 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. 1) is denied.
IT IS FURTHER ORDERED that Plaintiff shall file an amended
complaint within 30 days of the date of this Order. If Plaintiff fails to file an
amended complaint within 30 days, the Clerk of the Court shall enter judgment
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of dismissal, without prejudice, for failure to comply with a Court order.
Doc. 6.

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On October 15, 2012, Plaintiff filed an amended complaint. Doc. 7. In this 18 page

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amended complaint, Plaintiff still fails to meet Rule 8's pleading standard. First, she has

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failed to name any Defendants. Instead she names “Electors of the State of Arizona.”

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However, those names are ascertainable, and generally, the Federal courts do not permit

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generic naming of Defendants.1

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Second, and more importantly, Plaintiff fails to explain in any terms how the “Electors

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of the State of Arizona” have harmed her. Though the Court is taking liberties with the

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following summary, it appears Plaintiff is arguing and alleging that President Obama became

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involved in her divorce proceeding in Florida (Doc. 7 at 3). Plaintiff further alleges that

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President Obama’s involvement in her divorce proceeding violated his Oath of Office (Doc.

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7 at 4). Thus, Plaintiff is now suing the Electors of the State of Arizona to enjoin them from

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casting their votes for President Obama because, Plaintiff claims, this alleged violation of his

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Oath of Office makes him ineligible to hold the office of the President (Doc. 7 at 4-5).

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Finally, Plaintiff claims she is suing on behalf of a class of 620 people who all suffered this

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same violation of President Obama’s Oath of Office.

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The Court finds that Plaintiff has failed to meet Rule 8's pleading standard. The Court

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further finds that Plaintiff has failed to state a claim against the “Electors of the State of

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Arizona” (which the Court has already found to be an improper Defendant). For these

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reasons, the Court will dismiss this case. Finally, the Court also finds that Plaintiff’s

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complaint in this case falls into the category of “the irrational or wholly incredible.” See

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Denton v. Hernandez, 504 U.S. 25, 33 (1992) (dismissal also appropriate when the facts

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alleged are “clearly baseless,” “fanciful,” “fantastic,” and/or “delusional.”). Thus, dismissal

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is also justified on this basis.

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See, e.g., Fed. R. Civ. P. 10(a); Craig v. U.S., 413 F.2d 854, 856 (9th Cir.), cert.
denied, 396 U.S. 987 (1969); Molnar v. Nat’l Broadcasting Co., 231 F.2d 684, 686-87 (9th
Cir. 1956).
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Because the Court has already given Plaintiff leave to amend, and Plaintiff was unable

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to cure the deficiencies in her pleading, the Court finds any further amendments would be

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futile. Therefore,

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IT IS ORDERED that this case is dismissed, with prejudice, for the reasons stated
above, and the Clerk of the Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that Plaintiff’s motion to proceed in forma pauperis
(Doc. 3) is denied.
DATED this 6th day of November, 2012.

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