Ellis v. Circle K Corporation et al

Filing 12

ORDER: IT IS ORDERED that by July 16, 2018, Plaintiff must file a second amended complaint curing the deficiencies discussed above, or this case will be dismissed, without prejudice [see attached Order for details]. Signed by Senior Judge James A Teilborg on 6/28/18. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Micheal Ellis,

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Plaintiff,

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ORDER

v.

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No. CV-18-01842-PHX-JAT

Circle K Corporation, et al.,

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Defendants.

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On June 14, 2018, the Court issued the following Order:

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Pending before the Court is Plaintiff’s application to proceed in
forma pauperis. “Inquiring whether the court has jurisdiction is a federal
judge’s first duty in every case.” Belleville Catering Co. v. Champaign
Market Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003). In this case,
Plaintiff’s “complaint” is actually two separate complaints run together as a
single document. (Doc. 1).
In complaint 1, Plaintiff alleges jurisdiction based on diversity.
(Doc. 1 at 3). However, Plaintiff fails to plead the citizenship of any party.
See generally Caterpillar v. Lewis, 386 U.S. 523, 531 (1996). Further, the
address listed for every party is in Arizona.
In complaint 2, Plaintiff alleges federal question jurisdiction. In this
complaint, Plaintiff leaves blank all sections on federal question
jurisdiction. (Doc. 1 at 8). On this record, Plaintiff has failed to allege
federal question jurisdiction.
Based on the foregoing, Plaintiff has failed to allege or establish
federal subject matter jurisdiction. Therefore,
IT IS ORDERED that by June 28, 2018, Plaintiff shall file an
amended (single) complaint properly alleging federal subject matter
jurisdiction or this case will be dismissed, without prejudice.

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(Doc. 9).

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On June 15, 2018, Plaintiff filed a single amended complaint. In this amended

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complaint, Plaintiff alleges jurisdiction based on federal question, specifically “United

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States Code Title 42, Chapter 21[.]” (Doc. 10 at 3). Under Plaintiff’s statement of claim

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he states, (quoted in its entirety) “Racial Discrimination, Defamation of Character,

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Harassment, and Denial of Public Services due to Race.” (Doc. 10 at 4). Plaintiff also

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made a demand of “Five Million Dollars”. (Doc. 10 at 4). The Court has quoted all of

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Plaintiff’s allegations in his amended complaint.

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As the Court noted in its prior Order, Plaintiff seeks to proceed in forma pauperis.

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A.

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28 U.S.C. § 1915(e)(2)
Congress provided with respect to in forma pauperis cases that a
district court "shall dismiss the case at any time if the court determines" that
the "allegation of poverty is untrue" or that the "action or appeal" is
"frivolous or malicious," "fails to state a claim on which relief may be
granted," or "seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2). While much of section 1915
outlines how prisoners can file proceedings in forma pauperis, section
1915(e) applies to all in forma pauperis proceedings, not just those filed by
prisoners. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)("section
1915(e) applies to all in forma pauperis complaints"). "It is also clear that
section 1915(e) not only permits but requires a district court to dismiss an
in forma pauperis complaint that fails to state a claim." Id. Therefore, this
court must dismiss an in forma pauperis complaint if it fails to state a claim
or if it is frivolous or malicious.
"[A] complaint, containing both factual allegations and legal
conclusions, is frivolous where it lacks an arguable basis either in law or in
fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Furthermore, "a
finding of factual frivolousness is appropriate when the facts alleged rise to
the level of the irrational or wholly incredible, whether or not there are
judicially recognized facts available to contradict them." Denton v.
Hernandez, 504 U.S. 25, 33 (1992). "A case is malicious if it was filed
with the intention or desire to harm another." Andrews v. King, 398 F.3d
1113, 1121 (9th Cir. 2005).
B.
Rule 8, Federal Rules of Civil Procedure
A claim must be stated clearly enough to enable a defendant to
frame a responsive pleading. A complaint must contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." Fed.
R. Civ. P. 8(a). "Each averment of a pleading shall be simple, concise, and
direct." Fed. R. Civ. P. 8(e)(1). A complaint having the factual elements of
a cause of action present but scattered throughout the complaint and not
organized into a "short and plain statement of the claim" may be dismissed
for failure to satisfy Rule 8(a). Sparling v. Hoffman Constr. Co., 864 F.2d
635, 640 (9th Cir. 1988).
In order to assist litigants to understand the Rule 8(e) requirements
that averments "be simple, concise, and direct," Rule 84 of the Federal
Rules of Civil Procedure provides samples in an Appendix of Forms, which
are "intended to indicate the simplicity and brevity of statement which the
rules contemplate." McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.
1996). An example is Form 9 (Complaint for Negligence):
1. Allegation of jurisdiction
2. On June 1, 1936, in a public highway called Boylston Street in
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Boston, Massachusetts, defendant negligently drove a motor vehicle against
plaintiff, who was then crossing said highway.
3. As a result plaintiff was thrown down and had his leg broken, and
was otherwise injured, was prevented from transacting his business,
suffered great pain of body and mind, and incurred expenses for medical
attention and hospitalization in the sum of one thousand dollars.
4. Wherefore plaintiff demands judgment against defendant in the
sum of ___dollars and costs.
Id. "This complaint fully sets forth who is being sued, for what relief, and
on what theory, with enough detail to guide discovery. It can be read in
seconds and answered in minutes." Id. In addition, to satisfy Rule 8, each
claim must be stated in a separate count. Bautista v. Los Angeles, 216 F.3d
837, 840-41 (9th Cir. 2000).
Kennedy v. Andrews, 2005 WL 3358205, *2-*3 (D. Ariz. 2005).

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In this case, Plaintiff’s allegations still fail to state a claim. Further, the Court is

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uncertain whether jurisdiction under Title 42, Chapter 21 actually exists; however,

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because the allegations in the complaint are so conclusory, the Court cannot determine its

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jurisdiction. Additionally, Plaintiff’s citation to such a large section of the United States

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Code makes it impossible for the Court to be sure which particular statute he might be

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invoking.

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Based on all of the foregoing, the Court will give Plaintiff one last opportunity to

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amend the complaint to both allege federal subject matter jurisdiction and state a claim

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consistent with Rule 8 and the in forma pauperis statute. If Plaintiff chooses to amend

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again, Plaintiff should further note that “federal courts are without power to entertain

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claims otherwise within their jurisdiction if they are so attenuated and unsubstantial as to

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be absolutely devoid of merit, wholly insubstantial, obviously frivolous, plainly

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unsubstantial, or no longer open to discussion.” Hagans v. Lavine, 415 U.S. 528, 536-37

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(1974) (citations and internal quotations omitted). Thus, this Court has no jurisdiction

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over a claim, regardless of whether the claim is couched in federal terms, if the claim is

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“‘patently without merit, or so insubstantial, improbable, or foreclosed by Supreme Court

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precedent as not to involve a federal controversy.’” City of Las Vegas v. Clark County,

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755 F.2d 697, 701 (9th Cir. 1985) (quoting Demarest v. U.S., 718 F.2d 964, 966 (9th Cir.

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1983)). “To state a federal claim, it is not enough to invoke a constitutional provision or

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to come up with a catalogue of federal statutes allegedly implicated. Rather, as the

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Supreme Court has repeatedly admonished, it is necessary to state a claim that is

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substantial….” Noatak v. Hoffman, 896 F.2d 1157, 1166 (9th Cir. 1990) (Kozinski, J.

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dissenting) (majority opinion rev’d 501 U.S. 775 (1991)); see also Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 n.3 (2007); see also Buntrock v. SEC, 347 F.3d 995, 997

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(7th Cir. 2003) (noting that “a frivolous suit does not engage the jurisdiction of the

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district court”).

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Thus, based on the foregoing,

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IT IS ORDERED that by July 16, 2018, Plaintiff must file a second amended

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complaint curing the deficiencies discussed above, or this case will be dismissed, without

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prejudice.
Dated this 28th day of June, 2018.

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