Cortes v. Arizona, State of

Filing 10

ORDER, Plaintiff's complaint 1 is dismissed without prejudice; Plaintiff shall have until 2/15/13 to file an amended complaint; Plaintiff's motion to amend 8 is denied; Plaintiff's motion to proceed informa pauperis 3 is denied without prejudice; Plaintiff may re-file the motion if he files an amended complaint; the Clerk is directed to terminate this action without notice if Plaintiff fails to comply with this order. Signed by Judge David G Campbell on 1/15/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edwin Cortes,
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Plaintiff,
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vs.
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State of Arizona,
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Defendant.
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No. CV-12-2204 PHX-DGC
ORDER

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Plaintiff commenced this action by filing a pro se complaint on October 15, 2012.

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Doc. 1. Plaintiff filed a motion to amend and amended complaint on October 22, 2012.

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Docs. 8, 9. Plaintiff has filed a motion to proceed in forma pauperis. Doc. 3. For reasons

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that follow, the Court will dismiss the complaint and deny the motions without prejudice.

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I.

Dismissal of the Complaint.

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A complaint must plead “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard . . .

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asks for more than a sheer possibility that a defendant has acted unlawfully,” demanding

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instead sufficient factual allegations to allow “the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the

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pleader is entitled to relief.’” Id. at 1950 (citing Fed. R. Civ. P. 8(a)(2)).

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Plaintiff’s complaint does not satisfy the pleading requirements set forth in Twombly

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and Iqbal. The entirety of the complaint is an incoherent and disjointed, very brief story

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about an event apparently involving the Phoenix Municipal Court. Doc. 9 at 2. On the front

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page, Plaintiff states that his claims relate to a federal question 28 USC § 1331, but it is

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unclear from the factual narrative how Defendant is liable for any such claims. Id. at 1. ]

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Among its many defects, the complaint does not adequately allege subject matter

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jurisdiction. “Federal courts are courts of limited jurisdiction. They possess only that power

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authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511

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U.S. 375, 377 (1994). Pursuant to federal statutes, this Court has subject matter jurisdiction

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over a case only if it arises under federal law or the amount in controversy exceeds $75,000

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and the parties are citizens of different states. See 28 U.S.C. §§ 1331, 1332(a). The

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complaint does not explain why this Court has subject matter jurisdiction. The Court will

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dismiss the complaint without prejudice. Plaintiff shall have until February 15, 2013 to file

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an amended complaint.

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

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Rules of Civil Procedure. Rule 8(a) provides that a complaint “shall contain (1) a short and

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plain statement of the grounds upon which the court’s jurisdiction depends, . . . (2) a short

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

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demand for judgment for the relief the pleader seeks.” Fed. R. Civ. P. 8(a). These pleading

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requirements shall be set forth in separate and discrete paragraphs. The paragraphs must be

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numbered in consecutive order. Each paragraph must be “simple, concise, and direct.” Fed.

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R. Civ. P. 8(d)(1).

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Plaintiff is advised that vague references are insufficient to satisfy the pleading

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requirements of Rule 8. The amended complaint must give each Defendant “fair notice of

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what [Plaintiff’s] claim is and the grounds upon which it is based.” Holgate v. Baldwin, 425

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F.3d 671, 676 (9th Cir. 2005). This includes some factual basis for each claim asserted and

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the specific legal theory supporting the claim. “Threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct.

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at 1949.

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II.

Plaintiff’s Obligations.

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Plaintiff must become familiar with, and follow, the Federal Rules of Civil Procedure

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and the Rules of the United States District Court for the District of Arizona (“Local Rules”).

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See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (“Pro se litigants must follow the same

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rules of procedure that govern other litigants.”); Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th

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Cir. 1986) (pro se litigants “should not be treated more favorably than parties with attorneys

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of record”); Carter v. Comm’r of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986)

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(“Although pro se, [plaintiff] is expected to abide by the rules of the court in which he

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

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website: http://www.law.cornell.edu/rules/frcp/. A copy of the Court’s Local Rules of Civil

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Procedure may be obtained from the Clerk’s Office.

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

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complaint properly served on each Defendant within the time allowed by Rule 4(m) of the

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Federal Rules of Civil Procedure. See Fed. R. Civ. P. 4(c)(1). If Plaintiff fails to prosecute

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this action, or if he fails to comply with the rules or any Court order, the Court may dismiss

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the action with prejudice pursuant to Rule 41(b) of the Federal Rule of Civil Procedure. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992); Ghazali v. Moran, 46 F.3d 52, 54

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(9th Cir. 1995).

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IT IS ORDERED:

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1.

Plaintiff’s complaint (Doc. 1) is dismissed without prejudice. Plaintiff shall
have until February 15, 2013 to file an amended complaint.

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2.

Plaintiff’s motion to amend (Doc. 8) is denied.

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3.

Plaintiff’s motion to proceed informa pauperis (Doc. 3) is denied without

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prejudice. Plaintiff may re-file the motion if he files an amended complaint.

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The Clerk is directed to terminate this action without notice if Plaintiff fails to
comply with this order.

DATED this 15th day of January, 2013.

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