Winters v. Arizona, State of

Filing 11

ORDER that Plaintiff's amended complaint (Doc. 8 ) is dismissed without prejudice. Plaintiff's motion for appointment of pro bono counsel (Doc. 10 ) is denied. Plaintiff shall have until December 23, 2016 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 a second amended complaint by December 23, 2016. Signed by Judge David G Campbell on 12/5/16. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tanya Winters,

No. CV16-3542 PHX DGC
Plaintiff,

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v.

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ORDER

State of Arizona,
Defendant.

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Plaintiff Tanya Winters filed an amended complaint against the State of Arizona

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on November 28, 2016 (Doc. 8), pursuant to the Court’s Order (Doc. 7). The Court will

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screen Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff

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has also filed a motion to appoint pro bono counsel. Doc. 10. For the reasons stated

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below, the Court will dismiss the amended complaint and deny the motion to appoint pro

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bono counsel.

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I.

Legal Standards.

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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). “It is also clear that section 1915(e) not only permits but requires a district

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court to dismiss an in forma pauperis complaint that fails to state a claim.” Id. at 1127.

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A district court dismissing under this section “should grant leave to amend even if no

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request to amend the pleading was made, unless it determines that the pleading could not

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possibly be cured by 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

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

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unlawfully”). Dismissal is appropriate where the complaint lacks a cognizable legal

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theory, lacks sufficient facts alleged under a cognizable legal theory, or contains

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allegations disclosing some absolute defense or bar to recovery.

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Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. Cnty. of L.A., 119

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F.3d 778, 783 n.1 (9th Cir. 1997).

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II.

See Balistreri v.

Amended Complaint.

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Although Plaintiff’s amended complaint contains more information than her

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original complaint, it still fails to state a claim upon which relief can be granted. Plaintiff

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alleges that the State of Arizona is “not distributing Federal taxes and therefore violating

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the Complainants Constitutional Rights.” Doc. 8 at 2. As a basis for jurisdiction,

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Plaintiff cites the Arizona state constitution, which is not a legitimate basis for

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jurisdiction in this Court. Id. at 1. Plaintiff appears to quote at length from a state

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criminal money laundering statute, but such a statute does not grant her a private right of

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action in federal court. Id. at 2-3. Plaintiff fails to set forth any facts justifying her claim,

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and identifies no cognizable legal theory for this case.

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Because Plaintiff has failed to state a claim, the Court again will dismiss this

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action with leave to amend. The Court warns Plaintiff that a third failure to plead a claim

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will result in dismissal without leave to amend.
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III.

Leave to Amend and Plaintiff’s Obligations.

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Plaintiff shall have until December 23, 2016 to file a second amended complaint.

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Plaintiff is advised that she must become familiar with, and follow, the Federal Rules of

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

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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 should be set forth in

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

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simple, 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 a second

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amended complaint asserting constitutional violations by federal or state officials, her

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

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

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violation, and what injury was caused by each alleged constitutional violation. Such

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factual allegations must provide enough information to allow the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556

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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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IV.

Motion to Appoint Pro Bono Counsel.

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There is no constitutional right to appointed counsel in a civil case. See Ivey v. Bd.

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of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). The Court, however,

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does have the discretion to appoint counsel in Aexceptional circumstances.@ See 28

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U.S.C. ' 1915(e)(1); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Aldabe

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v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). AA finding of exceptional circumstances

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requires an evaluation of both >the likelihood of success on the merits and the ability of

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the petitioner to articulate his or her claim pro se in light of the complexity of the legal

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issues involved.=@ Wilborn, 789 F.2d at 1331(quoting Weygant v. Look, 718 F.2d 952,

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954 (9th Cir. 1983)); see Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988). ANeither

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of these factors is dispositive and both must be viewed together before reaching a

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decision on request of counsel@ under § 1915(e)(1).

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Wilborn, 789 F.2d at 1331.

Plaintiff has not demonstrated a likelihood of success on the merits.

While

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Plaintiff has pointed to financial difficulties she is experiencing, such difficulties do not

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make her case exceptional.

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circumstances@ requiring the appointment of counsel. See Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991) (district court did not abuse its discretion by refusing to

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appoint counsel where the plaintiff had sufficient writing ability and legal knowledge to

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articulate his claim, the facts alleged and issues raised were not of substantial complexity,

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and it was not likely that he would succeed on the merits).

Accordingly, this case does not present Aexceptional

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IT IS ORDERED:

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1.

Plaintiff’s amended complaint (Doc. 8) is dismissed without prejudice.

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2.

Plaintiff’s motion for appointment of pro bono counsel (Doc. 10) is denied.

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3.

Plaintiff shall have until December 23, 2016 to file a second amended

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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 a second amended complaint by

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December 23, 2016.

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Dated this 5th day of December, 2016.

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