Phillips v. Salt River Police Department et al

Filing 12

ORDER that Plaintiff's 8 APPLICATION to Proceed In Forma Pauperis is denied without prejudice. Plaintiff may refile his request for IFP status if he files an amended complaint. Plaintiff's 7 Amended Complaint is dismissed wit hout prejudice. Plaintiff shall have until May 16, 2014, to file a second amended complaint. The Clerk shall terminate this action without further order of the Court if Plaintiff fails to comply. Signed by Judge David G Campbell on 4/15/2014. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian G Phillips,

No. CV-13-02057-PHX-DGC
Plaintiff,

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ORDER

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v.

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Salt River Police Department, et al.,

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Defendants.

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On October 9, 2013, pro se Plaintiff filed a complaint against Defendants Salt

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River Police Department, Maricopa County Sheriff’s Department, Salt River Casino, and

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Bureau of Indian Affairs. Doc. 1. Plaintiff also filed an application to proceed in forma

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pauperis (“IFP”). Doc. 3. The Court screened the complaint, dismissed it for failure to

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state a claim, denied IFP status, and gave Plaintiff until January 6, 2014, to file an

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amended complaint.

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December 23, 2014, and filed an application requesting IFP status (Doc. 8).

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amended complaint is virtually identical to Plaintiff’s initial complaint, adding only a

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paragraph with some legal citations and an assertion that Plaintiff will file an amended

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complaint by January 5, 2014. Doc. 7 at 7. Plaintiff has filed no further amended

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complaint. The Court will deny Plaintiff’s application for IFP and dismiss the amended

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complaint for failure to state a claim.

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I.

Doc. 6.

Plaintiff filed an amended complaint (Doc. 7) on
The

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. A district court dismissing

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under § 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”).

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When analyzing a complaint for failure to state a claim, “[a]ll allegations of

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

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Legal conclusions couched as factual allegations are not given a presumption of

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truthfulness, and “conclusory allegations of law and unwarranted inferences are not

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sufficient.”

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appropriate where the complaint lacks a cognizable legal theory, lacks sufficient facts

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alleged under a cognizable legal theory, or contains allegations disclosing some absolute

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defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699

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(9th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, n.1 (9th Cir. 1997).

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II.

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

Dismissal is

Plaintiff’s Amended Complaint.

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Plaintiff’s amended complaint alleges civil rights violations and due process

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violations, including police misconduct, false arrest, conversion of personal property,

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collusion, and conspiracy. Doc. 7 at 1-2. Plaintiff alleges that his “property and vehicle

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were illegally confiscated” and that his car was being driven by “an agent of defendant,

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Salt River Police Department, illegally,” and that his “civil and due process rights were

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violated.” Id. at 3 The complaint alleges that two “Maricopa Sheriff’s Deputies were

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arrested and indicted for illegally confiscating personal property and vehicles and selling

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them on the black market,” which Plaintiff alleges is “exactly what has happened to

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plaintiff.” Id. The complaint then proceeds to explain that Plaintiff was arrested at Salt

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River Casino because a security guard smelled marijuana odor outside his car. Id. at 5.

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The complaint will be dismissed for the following reasons.

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First, the amended complaint sets forth no facts related to this case regarding

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improper conduct by the Maricopa County Sherriff’s Office. Plaintiff has failed to state a

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claim against that Defendant.

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Second, the amended complaint does not set forth the basis for liability against the

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Salt River Casino, nor does it assert that the Casino is a jural entity subject to suit.

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Plaintiff has failed to state a claim against that Defendant.

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Third, the amended complaint sets forth no basis for liability of the Bureau of

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Indian Affairs. Plaintiff alleges that he brought his grievance to its attention, and that

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nothing was done in response, but he does not explain how this gives rise to liability.

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Plaintiff has failed to state a claim against the Bureau.

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Fourth, read liberally, the amended complaint does appear to suggest that

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Plaintiff’s car and unspecified property were confiscated by the Salt River Police

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Department and never returned. But his complaint also refers to a civil action, brought

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by “the Salt River D.A.,” apparently for forfeiture of his property. Doc. 7 at 5. Plaintiff

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does not explain this civil action or whether his property was forfeited by court action.

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Given the lack of factual clarity in Plaintiff’s complaint, the Court cannot conclude that

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he has set forth a plausible claim for relief against the Salt River Police Department.

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III.

Leave to Amend and Plaintiff’s Obligations.

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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).

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prejudice and allow Plaintiff to file an amended complaint that properly states a claim for

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relief. Plaintiff shall have until May 16, 2014, to file a second amended complaint. If a

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second amended complaint is not filed by that date, the Clerk is directed to terminate this

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action without further order.

The Court will dismiss the complaint without

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Plaintiff is advised that this is the final opportunity the Court will afford for him to

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amend his complaint. Plaintiff will have had three opportunities to state his claims. If

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Plaintiff fails to do so, the Court will dismiss this case with prejudice.

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Plaintiff is advised that he must become familiar with, and follow, the Federal

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Rules of Civil Procedure and the Rules of the United States District Court for the District

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of Arizona (“Local Rules”), which may be obtained in the Clerk of Court’s office. For

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

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Civil Procedure. Rule 8(a) provides that a complaint “must contain (1) a short and plain

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statement of the grounds for the court’s jurisdiction . . . (2) a short and plain statement of

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the claim showing that the pleader is entitled to relief, and (3) a demand for the relief

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sought.” Fed. R. Civ. P. 8(a). These pleading requirements shall be set forth in separate

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and discrete paragraphs. Rule 8(d) provides that each such paragraph “must be simple,

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concise, and 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

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only designate a cause of action, but must also include enough factual allegations to

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render the claim plausible. If Plaintiff chooses to file an amended complaint asserting

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constitutional violations by federal or state officials, his pleading should include a

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statement of the constitutional rights Plaintiff believes to have been violated, how each

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right was violated, how each defendant contributed to the violation, and what injury was

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caused by each alleged constitutional violation. 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, 556 U.S. at 678.

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If Plaintiff fails to prosecute this action or to comply with the rules or any Court

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order, the Court may dismiss the action with prejudice pursuant to Federal Rule of Civil

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Procedure 41(b).

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(holding that the district court did not abuse its discretion in dismissing a pro se

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plaintiff’s complaint for failing to comply with a court order).

See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

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IT IS ORDERED:

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1.

Plaintiff’s request for IFP status (Doc. 8) is denied without prejudice.

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Plaintiff may refile his request for IFP status if he files an amended

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complaint.

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2.

Plaintiff’s amended complaint (Doc. 7) is dismissed without prejudice.

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3.

Plaintiff shall have until May 16, 2014, to file a second amended
complaint.

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The Clerk shall terminate this action without further order of the Court if

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Plaintiff fails to file a second amended complaint on or before

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May 16, 2014.

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Dated this 15th day of April, 2014.

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