Cortes v. Phoenix, City of et al

Filing 16

ORDER The amended complaint (Doc. 14 ) is dismissed without leave to amend. Plaintiff's motion for an extension of time (Doc. 15 ) is denied. The Clerk of Court shall terminate this action. Signed by Judge David G Campbell on 11/4/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,

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No. CV-13-01403-PHX-DGC

Edwin Cortes,

ORDER

v.
City of Phoenix, et al.,
Defendants.

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On July 12, 2013, Plaintiff Edwin Cortes filed a complaint against Defendants

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City of Phoenix and Karen Joan Smith. Doc. 1 at 1. Plaintiff also filed an application to

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proceed in forma pauperis (“IFP”). Doc. 3. The Court screened the complaint, dismissed

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it for failure to state a claim, and gave Plaintiff until August 23, 2013 to file an amended

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complaint. Doc. 9. Plaintiff filed, and the Court granted, two motions for extension of

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this deadline. Docs. 11, 13. In the last extension, the Court cautioned Plaintiff that

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further extensions would not be granted. Doc. 13. Plaintiff filed an amended complaint

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on October 23, 2013. Doc. 14.

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I.

Legal Standard.

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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[.]”

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28 U.S.C. ' 1915(e)(2). While much of § 1915 concerns prisoner litigation, § 1915(e)

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applies to all IFP proceedings. Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000)

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(en banc). “Section 1915(e)(2)(B)(ii) . . . allows a district court to dismiss[] sua sponte

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. . . a complaint that fails to state a claim[.]” Id. at 1130. “It is also clear that section

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1915(e) not only permits but requires a district court to dismiss an in forma pauperis

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complaint that fails to state a claim.” Id. at 1127. A district court dismissing under

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

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pleading was made, unless it determines that the pleading could not possibly be cured by

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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, 678 (2009) (“The plausibility standard

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. . . asks for more than a sheer possibility that a defendant has acted unlawfully”). When

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analyzing a complaint for failure to state a claim, “[a]ll allegations of material fact are

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taken as true.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). Legal conclusions

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couched as factual allegations are not given a presumption of truthfulness, and

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“conclusory allegations of law and unwarranted inferences are not sufficient.” Pareto v.

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

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complaint lacks a cognizable legal theory, lacks sufficient facts alleged under a

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cognizable legal theory, or contains allegations disclosing some absolute defense or bar

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to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988);

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

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II.

Dismissal is appropriate where the

Plaintiff’s Amended Complaint.

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Plaintiff’s amended complaint contains no clear allegations of wrongdoing. It

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begins by identifying six judges from this Court who apparently have ruled on Plaintiff’s

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previous filings, suggests their rulings are fraudulent, and requests a trial against the City

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of Phoenix for “abuse.” Doc. 14 at 1. The complaint suggests wrongs for excessive

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force, false reporting, and “an illegal search and seizure inside my castle,” but provides
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no factual explanation of these alleged wrongs. Id. The amended complaint proceeds

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with random pages concerning emergency motions, appeals, and service of process. In a

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portion titled “Statement of Claim,” Plaintiff discusses appeal bonds. Various state

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statutes are cited or quoted, and Arizona Superior Court Judges Gerlach and Davis are

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identified as having deprived Plaintiff his rights.

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The amended complaint fails to state a claim and fails to address deficiencies

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identified in this Court’s prior order, despite Plaintiff’s being afforded three months to

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craft an amended complaint. The Court will dismiss the amended complaint for failure to

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state a claim.

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III.

Leave to Amend.

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As noted in the Court’s prior order of dismissal, “[a] pro se litigant must be given

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leave to amend his or her complaint unless it is absolutely clear that the deficiencies of

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the complaint could not be cured by amendment.” Karim-Panahi v. L.A. Police Dep’t,

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839 F.2d 621, 623 (9th Cir. 1988) (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.

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1987)); see also Lopez, 203 F.3d at 1127-29 (§ 1915(e)(2)(B)(ii)’s mandated dismissal of

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an IFP complaint allows a district court to grant leave to amend); Waters v. Young, 100

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F.3d 1437, 1441 (9th Cir. 1996) (“As a general matter, this court has long sought to

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ensure that pro se litigants do not unwittingly fall victim to procedural requirements that

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they may, with some assistance from the court, be able to satisfy.”).

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Plaintiff has filed other cases in this Court, including CV-11-01711-ROS-JRI, CV-

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12-00688-FJM, CV-12-01117-GMS, and CV-12-01321-SLG. Plaintiff made allegations

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of wrongdoing in many of them similar to allegations in his amended complaint. Each of

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these cases was dismissed when Plaintiff failed to state a claim, initially or by

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amendment. Given this history, the Court finds it absolutely clear that further attempts at

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amendment in this case will be futile and will only consume time and resources needed

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by other cases. As a result, the Court will not grant Plaintiff leave to amend.

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IT IS ORDERED:

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1.

The amended complaint (Doc. 14) is dismissed without leave to amend.
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Plaintiff’s motion for an extension of time (Doc. 15) is denied.

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3.

The Clerk of Court shall terminate this action.

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Dated this 4th day of November, 2013.

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