Vejvoda v. Tublino et al
Filing
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ORDER: Plaintiff's request for IFP status (Doc. 3 ) is denied; Plaintiff's complaint (Doc. 1 ) is dismissed without prejudice; Plaintiff shall have until March 7, 2014 to file an amended complaint; The Clerk of Court shall terminate this action without further order of the Court if Plaintiff fails to file an amended complaint by March 7, 2014. Signed by Judge David G Campbell on 2/14/2014. (ALS)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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No. CV-14-0103-PHX-DGC
Alicea Vejvoda,
Plaintiff,
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v.
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ORDER
Monica Tublino, et al.,
Defendants.
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Plaintiff Alicea Vejvoda has filed a complaint against Monica Tublino and Child
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Protective Services (“CPS”). Doc. 1. She has also filed an application to proceed in
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forma pauperis (“IFP”). Doc. 3. The Court will deny her application for IFP status,
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screen her complaint, and dismiss the complaint for failure to state a claim.
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I.
Motion for IFP Status.
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Plaintiff attaches an affidavit in support of her motion on a court-approved form,
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but the affidavit is not completed properly. For example, the affidavit does not contain
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any information regarding income or expenses, does not contain an explanation for why
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Plaintiff cannot pay the costs of these proceedings, and does not contain Plaintiff’s phone
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number, age, years of schooling, or the last four digits of her social security number for
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identification purposes. Doc. 3. The application for IFP status will therefore be denied.
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II.
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 1915(e)
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not only permits but requires a district court to dismiss an in forma pauperis complaint
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that fails to state a claim.” Id. at 1127. A district court dismissing under this section
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“should grant leave to amend even if no request to amend the pleading was made, unless
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it determines that the pleading could not possibly be cured by the allegation of other
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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”). Legal
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conclusions couched as factual allegations are not given a presumption of truthfulness
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and “conclusory allegations of law and unwarranted inferences are not sufficient.”
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Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.1998). Dismissal is appropriate where the
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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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III.
Plaintiff's Complaint.
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Plaintiff’s complaint does not state the basis for this Court’s jurisdiction as
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required by Federal Rule of Civil Procedure 8(a)(1). In addition, the complaint contains a
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long narrative that appears to allege various wrongs committed by CPS with respect to
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Plaintiff and her daughter, including allegations of violations of privacy, perjury, lies,
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coercion, and that chips have been placed in her daughter’s ears and have not been
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removed. Plaintiff also appears to allege that her custody of her daughter has been
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terminated by CPS or a court. Attached to the complaint are documents which appear to
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be medical records for Plaintiff dating back to 2004 and Arizona Health Care Cost
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Containment System documents dating back to 2005.
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The complaint is difficult to understand. The Court cannot identify the legal
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claims Plaintiff is asserting or the precise factual basis for those claims. The Court will
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therefore dismiss the complaint for failure to state a claim.
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IV.
Leave to Amend and Plaintiff's Obligations.
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In this circuit, “[a] pro se litigant must be given leave to amend his or her
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complaint unless it is absolutely clear that the deficiencies of the complaint could not be
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cured by amendment.” Karim–Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th
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Cir.1988). The Court will dismiss the complaint without prejudice and allow Plaintiff to
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file an amended complaint, consistent with this order, that properly states a claim for
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relief. Plaintiff shall have until March 7, 2014 to file an amended complaint.
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Plaintiff is advised that she 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. Iqbal, 556 U.S. at 677. If Plaintiff chooses to file an amended
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complaint asserting violations by Defendants, her pleading should include a statement of
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the rights Plaintiff believes to have been violated, how each right was violated, how each
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defendant contributed to the violation, and what injury was caused by each alleged
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violation. Such factual allegations must provide enough information to “allow[ ] the
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court to draw the reasonable inference that the defendant[s are] liable for the misconduct
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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).
See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir.1992)
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(holding that the district court did not abuse its discretion in dismissing a pro se plaintiff's
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complaint for failing to comply with a court order).
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IT IS ORDERED:
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1.
Plaintiff’s request for IFP status (Doc. 3) is denied.
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2.
Plaintiff's complaint (Doc. 1) is dismissed without prejudice.
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3.
Plaintiff shall have until March 7, 2014 to file an amended complaint.
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4.
The Clerk of Court shall terminate this action without further order of the
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Court if Plaintiff fails to file an amended complaint by March 7, 2014.
Dated this 14th day of February, 2014.
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