Lyman v. United States of America

Filing 5

ORDER: Plaintiff's request for IFP status 2 is granted; Plaintiff's complaint 1 is dismissed without prejudice; Plaintiff shall have until July 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 July 7, 2014. Signed by Judge David G Campbell on 6/6/2014. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alexandro Lyman,

No. CV-14-0967-PHX-DGC
Plaintiff,

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v.

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ORDER

United States of America,
Defendant.

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Plaintiff Alexandro Lyman has filed a complaint against the United States.

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Doc. 1. He has also filed a motion to proceed in forma pauperis (“IFP”). Doc. 2. The

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Court will grant his application for IFP status, screen his complaint, and dismiss the

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complaint for failure to state a claim.

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I.

Motion for IFP Status.

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Plaintiff attaches an affidavit on a court-approved form which suggests that he

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receives a total monthly income of $0, that he has monthly expenses totaling $0, and that

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he has a medical condition that prevents him from working. Doc. 2. His motion for IFP

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status will be granted.

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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). Although 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

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

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

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

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

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

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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

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

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unlawfully”).

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presumption of truthfulness and “conclusory allegations of law and unwarranted

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

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

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

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

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

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1997).

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III.

Legal conclusions couched as factual allegations are not given a

Plaintiff’s Complaint.

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Plaintiff’s complaint is largely incoherent, but appears to allege various wrongs

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committed by the United States in violation of his constitutional rights. The complaint

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contains no facts in support of these claims. The complaint also fails to state the legal

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nature of Plaintiff’s claim, the basis for this Court’s jurisdiction, the specific defendants

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being sued, or the actions of those defendant that give rise to liability.
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The complaint fails to state a plausible claim for relief. The Court will therefore

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dismiss it.

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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 Cir.

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1988). The Court will dismiss the complaint without prejudice and allow Plaintiff to file

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an amended complaint, consistent with this order, that properly states a claim for relief.

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Plaintiff shall have until July 7, 2014 to file an amended complaint.

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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. Iqbal, 556 U.S. at 677. If Plaintiff chooses to file an amended

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

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

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

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and what injury was caused by each alleged violation. Such factual allegations must

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provide enough information to allow the court to draw the reasonable inference that the

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defendants 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. 2) is granted.

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2.

Plaintiff’s complaint (Doc. 1) is dismissed without prejudice.

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3.

Plaintiff shall have until July 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 July 7, 2014.

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Dated this 6th day of June, 2014.

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