Lyman v. Arizona Department of Economic Service

Filing 13

ORDER: Plaintiff's amended complaint 9 is dismissed without prejudice as to his claim under the Fourteenth Amendment only. Plaintiff's amended complaint 9 is dismissed with prejudice as to all other claims. Plaintiff s hall have until September 12, 2014 to file a second 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 September 12, 2014. Signed by Judge David G Campbell on 8/26/2014. (ALS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Alexandro Lyman,

No. CV-14-0964-PHX-DGC
Plaintiff,

10

ORDER

11

v.

12

Arizona Department of Economic Services,
Defendant.

13

Plaintiff Alexandro Lyman has filed an amended complaint against the Arizona

14
15

Department of Economic Services.

Doc. 9.

The Court will screen the amended

16

complaint and dismiss it for failure to state a claim.

17

I.

Legal Standard.

18

In IFP proceedings, a district court “shall dismiss the case at any time if the court

19

determines that . . . the action . . . fails to state a claim on which relief can be granted[.]”

20

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

21

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

22

(en banc).

23

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

24

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

25

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

26

under this section “should grant leave to amend even if no request to amend the pleading

27

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

28

allegation of other facts.” Id. at 1127-29 (citations omitted).

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

1

Rule 8 of the Federal Rules of Civil Procedure provides that “[a] pleading that

2

states a claim for relief must contain . . . a short and plain statement of the claim showing

3

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This short and plain statement

4

“need not contain detailed factual allegations; rather, it must plead ‘enough facts to state

5

a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534

6

F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

7

(2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“The plausibility

8

standard . . . asks for more than a sheer possibility that a defendant has acted

9

unlawfully”).

Legal conclusions couched as factual allegations are not given a

10

presumption of truthfulness and “conclusory allegations of law and unwarranted

11

inferences are not sufficient.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).

12

Dismissal is appropriate where the complaint lacks a cognizable legal theory, lacks

13

sufficient facts alleged under a cognizable legal theory, or contains allegations disclosing

14

some absolute defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901

15

F.2d 696, 699 (9th Cir. 1988); Weisbuch v. Cnty of L.A., 119 F.3d 778, 783 n.1 (9th Cir.

16

1997).

17

II.

Plaintiff’s Amended Complaint.

18

Plaintiff’s amended complaint alleges that he was approved for “AHCCCS Health

19

Insurance 10/11/11 (sic).” Doc. 9 at 1. He further alleges that from August 2011 through

20

March 2012, he was a patient of “Luis R Lopez MD,” and appears to allege that he had

21

some sort of surgery scheduled with this physician. Id. Plaintiff contends that on

22

February 8, 2012, he was “befor (sic) Doctor Kevin Potter scheduling for general

23

surgery.” Id. at 2. Plaintiff alleges that on March 17, 2012, he was informed that his

24

insurance was canceled. Id. He contends that Defendant “committed tort act violation of

25

guaranteed constitutional rights amendments IX, X, and XIV section 1 (sic throughout).”

26

Id. He also alleges that Defendant violated several statutes, namely 18 U.S.C. §§ 241,

27

242, and 1035, and that these violations “caused prolonged suffering, to [his] person

28

(sic).” Doc. 9 at 2. He finally appears to contend that “A.R.S. section 36-2901(6)” is
-2-

1

unconstitutional. Id. at 3.
Plaintiff does not explain how the cancelation of his AHCCCS insurance was a

2
3

violation of any of the statutes or constitutional provisions cited.

4

Plaintiff’s health insurance was wrongly canceled, without supporting facts, is

5

insufficient to state a claim for relief.
Plaintiff’s claims are defective for other reasons.

6

The allegation

The Ninth and Tenth

7

Amendments, which Plaintiff contends were violated, do not support a private right of

8

action against a state agency, such as Defendant. The Ninth Amendment “does not

9

confer substantive rights in addition to those conferred by other portions of our governing

10

law.” Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991). The Tenth Amendment

11

protects against exercises of federal power, but does not give individuals any rights

12

against state agencies such as Defendant. Moreover, the statutes cited by Plaintiff are

13

criminal statutes. An individual cannot bring a private civil action to enforce provisions

14

of Title 18 of the United States Code. The Court will dismiss Plaintiff’s complaint for

15

failure to state a claim.

16

III.

Leave to Amend and Plaintiff’s Obligations.

17

In this circuit, “[a] pro se litigant must be given leave to amend his or her

18

complaint unless it is absolutely clear that the deficiencies of the complaint could not be

19

cured by amendment.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir.

20

1988).

21

Amendments and several criminal statutes, it is clear these claims cannot be salvaged by

22

any amendment. The Court will dismiss the complaint with prejudice as to these claims.

23

As to Plaintiff’s Fourteenth Amendment claim, the Court will dismiss this claim without

24

prejudice and will allow Plaintiff to file a second amended complaint, consistent with this

25

order, that properly states a claim for relief. Plaintiff shall have until September 12,

26

2014 to file a second amended complaint.

In light of the issues with Plaintiff’s claims under the Ninth and Tenth

27

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

28

Federal Rules of Civil Procedure and the Rules of the United States District Court for the
-3-

1

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

2

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

3

Federal Rules of Civil Procedure. Rule 8(a) provides that a complaint “must contain (1) a

4

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

5

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

6

demand for the relief sought.” Fed. R. Civ. P. 8(a). These pleading requirements shall be

7

set forth in separate and discrete paragraphs. Rule 8(d) provides that each such paragraph

8

“must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).

9

The “short and plain statement of the claim” required by Rule 8(a)(2) must not

10

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

11

render the claim plausible. Iqbal, 556 U.S. at 677. If Plaintiff chooses to file an amended

12

complaint asserting constitutional violations by federal or state officials, his pleading

13

should include a statement of the constitutional rights Plaintiff believes to have been

14

violated, how each right was violated, how each defendant contributed to the violation,

15

and what injury was caused by each alleged constitutional violation.

16

allegations must provide enough information to “allow[ ] the court to draw the reasonable

17

inference that the defendant[s are] liable for the misconduct alleged.” Iqbal, 556 U.S. at

18

678.

Such factual

19

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

20

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

21

Procedure 41(b).

22

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

23

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

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

24

IT IS ORDERED:

25

1.

to his claim under the Fourteenth Amendment only.

26
27
28

Plaintiff’s amended complaint (Doc. 9) is dismissed without prejudice as

2.

Plaintiff’s amended complaint (Doc. 9) is dismissed with prejudice as to
all other claims. .
-4-

1

3.

complaint.

2
3

Plaintiff shall have until September 12, 2014 to file a second amended

4.

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

4

Court if Plaintiff fails to file an amended complaint by September 12,

5

2014.

6

Dated this 26th day of August, 2014.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-