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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tanya Winters, No. CV16-3542 PHX DGC Plaintiff, 10 11 v. 12 ORDER State of Arizona, Defendant. 13 14 15 Plaintiff Tanya Winters filed an amended complaint against the State of Arizona 16 on November 28, 2016 (Doc. 8), pursuant to the Court’s Order (Doc. 7). The Court will 17 screen Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff 18 has also filed a motion to appoint pro bono counsel. Doc. 10. For the reasons stated 19 below, the Court will dismiss the amended complaint and deny the motion to appoint pro 20 bono counsel. 21 I. Legal Standards. 22 In IFP proceedings, a district court “shall dismiss the case at any time if the court 23 determines that . . . the action . . . fails to state a claim on which relief can be granted[.]” 24 28 U.S.C. § 1915(e)(2). Although much of § 1915 concerns prisoner litigation, § 1915(e) 25 applies to all IFP proceedings. Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) 26 (en banc). “It is also clear that section 1915(e) not only permits but requires a district 27 court to dismiss an in forma pauperis complaint that fails to state a claim.” Id. at 1127. 28 A district court dismissing under this section “should grant leave to amend even if no 1 request to amend the pleading was made, unless it determines that the pleading could not 2 possibly be cured by the allegation of other facts.” Id. at 1127-29 (citations omitted). 3 Rule 8 of the Federal Rules of Civil Procedure provides that “[a] pleading that 4 states a claim for relief must contain . . . a short and plain statement of the claim showing 5 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This short and plain statement 6 “need not contain detailed factual allegations; rather, it must plead ‘enough facts to state 7 a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534 8 F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 9 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“The plausibility 10 standard . . . asks for more than a sheer possibility that a defendant has acted 11 unlawfully”). Dismissal is appropriate where the complaint lacks a cognizable legal 12 theory, lacks sufficient facts alleged under a cognizable legal theory, or contains 13 allegations disclosing some absolute defense or bar to recovery. 14 Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. Cnty. of L.A., 119 15 F.3d 778, 783 n.1 (9th Cir. 1997). 16 II. See Balistreri v. Amended Complaint. 17 Although Plaintiff’s amended complaint contains more information than her 18 original complaint, it still fails to state a claim upon which relief can be granted. Plaintiff 19 alleges that the State of Arizona is “not distributing Federal taxes and therefore violating 20 the Complainants Constitutional Rights.” Doc. 8 at 2. As a basis for jurisdiction, 21 Plaintiff cites the Arizona state constitution, which is not a legitimate basis for 22 jurisdiction in this Court. Id. at 1. Plaintiff appears to quote at length from a state 23 criminal money laundering statute, but such a statute does not grant her a private right of 24 action in federal court. Id. at 2-3. Plaintiff fails to set forth any facts justifying her claim, 25 and identifies no cognizable legal theory for this case. 26 Because Plaintiff has failed to state a claim, the Court again will dismiss this 27 action with leave to amend. The Court warns Plaintiff that a third failure to plead a claim 28 will result in dismissal without leave to amend. -2- 1 III. Leave to Amend and Plaintiff’s Obligations. 2 Plaintiff shall have until December 23, 2016 to file a second amended complaint. 3 Plaintiff is advised that she must become familiar with, and follow, the Federal Rules of 4 Civil Procedure and the Rules of the United States District Court for the District of 5 Arizona (“Local Rules”), which may be obtained in the Clerk of Court’s office. For 6 purposes of the amended complaint, Plaintiff is directed to Rule 8 of the Federal Rules of 7 Civil Procedure. Rule 8(a) provides that a complaint “must contain (1) a short and plain 8 statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement of 9 the claim showing that the pleader is entitled to relief, and (3) a demand for the relief 10 sought.” Fed. R. Civ. P. 8(a). These pleading requirements should be set forth in 11 separate and discrete paragraphs. Rule 8(d) provides that each such paragraph “must be 12 simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). 13 The “short and plain statement of the claim” required by Rule 8(a)(2) must not 14 only designate a cause of action, but must also include enough factual allegations to 15 render the claim plausible. Iqbal, 556 U.S. at 677. If Plaintiff chooses to file a second 16 amended complaint asserting constitutional violations by federal or state officials, her 17 pleading should include a statement of the constitutional rights Plaintiff believes to have 18 been violated, how each right was violated, how each defendant contributed to the 19 violation, and what injury was caused by each alleged constitutional violation. Such 20 factual allegations must provide enough information to allow the court to draw the 21 reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 22 U.S. at 678. 23 If Plaintiff fails to prosecute this action or to comply with the rules or any Court 24 order, the Court may dismiss the action with prejudice pursuant to Federal Rule of Civil 25 Procedure 41(b). 26 (holding that the district court did not abuse its discretion in dismissing a pro se 27 plaintiff’s complaint for failing to comply with a court order). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 28 -3- 1 IV. Motion to Appoint Pro Bono Counsel. 2 There is no constitutional right to appointed counsel in a civil case. See Ivey v. Bd. 3 of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). The Court, however, 4 does have the discretion to appoint counsel in Aexceptional circumstances.@ See 28 5 U.S.C. ' 1915(e)(1); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Aldabe 6 v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). AA finding of exceptional circumstances 7 requires an evaluation of both >the likelihood of success on the merits and the ability of 8 the petitioner to articulate his or her claim pro se in light of the complexity of the legal 9 issues involved.=@ Wilborn, 789 F.2d at 1331(quoting Weygant v. Look, 718 F.2d 952, 10 954 (9th Cir. 1983)); see Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988). ANeither 11 of these factors is dispositive and both must be viewed together before reaching a 12 decision on request of counsel@ under § 1915(e)(1). 13 Wilborn, 789 F.2d at 1331. Plaintiff has not demonstrated a likelihood of success on the merits. While 14 Plaintiff has pointed to financial difficulties she is experiencing, such difficulties do not 15 make her case exceptional. 16 circumstances@ requiring the appointment of counsel. See Terrell v. Brewer, 935 F.2d 17 1015, 1017 (9th Cir. 1991) (district court did not abuse its discretion by refusing to 18 appoint counsel where the plaintiff had sufficient writing ability and legal knowledge to 19 articulate his claim, the facts alleged and issues raised were not of substantial complexity, 20 and it was not likely that he would succeed on the merits). Accordingly, this case does not present Aexceptional 21 IT IS ORDERED: 22 1. Plaintiff’s amended complaint (Doc. 8) is dismissed without prejudice. 23 2. Plaintiff’s motion for appointment of pro bono counsel (Doc. 10) is denied. 24 3. Plaintiff shall have until December 23, 2016 to file a second amended 25 complaint. 26 27 28 -4- 1 4. The Clerk of Court shall terminate this action without further order of the 2 Court if Plaintiff fails to file a second amended complaint by 3 December 23, 2016. 4 Dated this 5th day of December, 2016. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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