Cuagliotti v. Mesa, City of

Filing 8

ORDER GRANTING the application for leave to proceed in forma pauperis, without prepayment of costs or fees or the necessity of giving security therefor 2 . IT IS FURTHER ORDERED that Counts three, four and part of Count five are dismissed, without prejudice, as specified above. IT IS FINALLY ORDERED that service by waiver or service of the summons and complaint shall be at government expense on the defendant by the U.S. Marshal or his authorized representative. The Court directs the followin g: The Clerk of Court must send Plaintiff a service packet including the Amended Complaint 5 , this Order, USM-285, and both summons and request for waiver forms for the Defendant. Plaintiff must complete and return the service packet to the Clerk of Court within 30 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. If Plaintiff does not timely return the service packet, this action may be dism issed. If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on Defendant within 90 days of this Order, the action may be dismissed. See document for complete details. Signed by Judge Sharad H Desai on 3/5/2025. (Attachments: # 1 Service Packet Letter)(KLG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl Cuagliotti,
Plaintiff,

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v.

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City of Mesa,

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No. CV-24-02970-PHX-SHD
ORDER

Defendant.

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Pending before the Court is Plaintiff’s motion to proceed in forma pauperis (“IFP”).

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(Doc. 2).

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I.

Legal Standards

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A.

Ability to Pay

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“There is no formula set forth by statute, regulation, or case law to determine when

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someone is poor enough to earn IFP status.” Escobedo v. Applebees, 787 F.3d 1226, 1235

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(9th Cir. 2015). “An affidavit in support of an IFP application is sufficient where it alleges

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that the affiant cannot pay the court costs and still afford the necessities of life.” Id. at 1234

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(citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)).
28 U.S.C. ' 1915(e)(2)

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B.

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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

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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.

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Kennedy v. Andrews, 2005 WL 3358205, *2 (D. Ariz. 2005).

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“The standard for determining whether a plaintiff has failed to state a claim
upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the
Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that
screening pursuant to § 1915A “incorporates the familiar standard applied in
the context of failure to state a claim under Federal Rule of Civil Procedure
12(b)(6)”).

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Hairston v. Juarez, No. 22-CV-01801-BAS-WVG, 2023 WL 2468967, at *2 (S.D. Cal.

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Mar. 10, 2023).

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II.

In Forma Pauperis Application

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Here, the Court has reviewed the application to proceed IFP. (Doc. 2). The Court

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finds Plaintiff cannot pay the filing fee and still afford necessities. Accordingly, the motion

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will be granted.

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III.

Amended Complaint

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Next, the Court will screen the complaint under 28 U.S.C § 1915(e)(2). On

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November 13, 2024, Plaintiff filed an amended complaint, which completely superseded

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the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach

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Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). Therefore, the

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Court will screen the amended complaint.

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In short summary, Plaintiff, who “prefer[s] to save his . . . resources . . . rather than

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spending on rent”, sues the City of Mesa for not permitting him to sleep in a public park.

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(Doc. 5). More specifically, Plaintiff claims that Mesa City Ordinance 6-10-4(V) (the

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“anti-camping” ordinance) is unconstitutional. (Id.). Plaintiff further challenges the

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enforcement of Mesa City Ordinance 6-10-2, which defines the camping activities that are

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prohibited. (Id.).

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The amended complaint asserts five causes of action: 1) violation of the Fourteenth

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Amendment–Substantive Due Process; 2) Violation of the Fourth Amendment–Unlawful

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Seizure; 3) Public Health Argument–Sleep Depravation and Torture; 4) the ordinance is

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unnecessary and redundant; and 5) the ordinance is unconstitutionally overbroad and

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vague. (Id.). The Court will consider whether each count states a claim in turn.

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With respect to count one, which asserts a Fourteenth Amendment violation, the

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Court concludes that Plaintiff states a claim to survive screening under 28 U.S.C.

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§ 1915(e)(2). See Alfred v. City of Vallejo, No. 2:24-CV-03317-DC-SCR, 2025 WL

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435900, at *8–12 (E.D. Cal. Feb. 7, 2025) (granting a preliminary injunction preventing

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removal of an unhoused person’s shelter under the state created danger doctrine under the

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Fourteenth Amendment); Prado v. City of Berkeley, No. 23-CV-04537-EMC, 2024 WL

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3697037, at *28–29 (N.D. Cal. Aug. 6, 2024) (cataloging cases recognizing a Fourteenth

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Amendment substantive due process claim based on various city-wide policies impacting

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the unhoused). To reach this conclusion, the Court has liberally construed Plaintiff’s pro

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se amended complaint. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (noting that

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self-represented litigant’s pleadings are construed liberally).

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With respect to count two, which asserts an unlawful seizure, Plaintiff claims his

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person is effectively being subjected to an unlawful seizure because he is forced to choose

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between going into a restrictive shelter or criminal charges. (Doc. 5 at 5). For purposes of

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whether Plaintiff states a claim on screening, the Court must accept Plaintiff’s factual

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allegations as true. Hairston, 2023 WL 2468967, at *2 (S.D. Cal. Mar. 10, 2023). Thus,

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for purposes of screening, the Court will accept as true Plaintiff’s factual allegations that

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his only options are criminal charges (which could result in a seizure of his person) or going

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to a shelter, which Plaintiff asserts is a “seizure.”

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A seizure “can take the form of ‘physical force’ or a ‘show of authority’ that
‘in some way restrain[s] the liberty’ of the person.” Torres v. Madrid, 592
U.S. 306, 311 (2021) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). A
Fourth Amendment seizure occurs “when there is a governmental
termination of freedom of movement through means intentionally applied.”
Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989). The Fourth Amendment
is intended to “prevent arbitrary and oppressive interference by enforcement
officials with the privacy and personal security of individuals.” United States
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v. Martinez-Fuerte, 428 U.S. 543, 554 (1976). Thus, a seizure occurs any
time an “officer accosts an individual and restrains his freedom to walk
away.” Terry, 392 U.S. at 16. “[A] mere touch can be enough for a seizure,”
and “brief seizures are seizures all the same.” Torres, 592 U.S. at 317–18.

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Sanderlin v. Dwyer, 116 F.4th 905, 911–12 (9th Cir. 2024).

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Against this broad definition of seizure and in the context of this preliminary

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screening, the Court finds Plaintiff states a claim. However, the Court notes that in his

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amended complaint, Plaintiff claims that he was “forced” to choose between a shelter and

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criminal prosecution but does not allege that he actually went to a shelter or that he was

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criminally prosecuted. (Doc. 5). Specifically, Plaintiff details an encounter with a person

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offering shelter services, which Plaintiff refused. (Id. at 3). Plaintiff then details an

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encounter with police (15 minutes after he refused shelter services) wherein the police

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advised him that he could not stay in the park with his bags. (Id.). But Plaintiff does not

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allege how this encounter ended. In other words, as a matter of factual allegations, Plaintiff

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does not expressly state that this particular encounter ended with Plaintiff being either

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criminally charged or “forced” to go to a shelter. Thus, while the Court has accepted

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Plaintiff’s general factual allegations as true that he was “forced” into one of these options,

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the Court notes that Plaintiff’s specific factual allegations do not support those general

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factual allegations. Nonetheless, the Court finds that count two sufficiently states a claim

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to survive screening.

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With respect to count three, the Court finds Plaintiff fails to state a claim. Plaintiff

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claims that the City of Mesa tortures him via sleep deprivation. (Doc. 5 at 6). However,

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Plaintiff’s specific factual allegations are that the City of Mesa offers him two binary

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choices, both of which result in bed space. Plaintiff does not allege an inability to sleep at

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either offered option. Therefore, Plaintiff’s claim in this regard is directly contradicted by

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his only factual allegations. Thus, count three will be dismissed below because it fails to

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state a claim.

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With respect to count four, Plaintiff alleges that the challenged anti-camping

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ordinance is redundant and unnecessary because the harms sought to be prevented (like

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littering) are already prohibited under other Arizona state laws. (Doc. 5 at 7). Plaintiff has

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not cited, and the Court is not aware of, any provision of the Constitution that would be

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violated because the same conduct is covered by more than one criminal statute. See

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Hubbard v. United States, 514 U.S. 695, 714 n. 14 (1995) (“Congress may, and often does,

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enact separate criminal statutes that may, in practice, cover some of the same conduct”);

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see also Sansone v. United States, 380 U.S. 343, 352 (1965) (permitting the Government

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to proceed on a felony tax evasion charge even though that charge “covered precisely the

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same ground” as two misdemeanors found in the Tax Code). Thus, Plaintiff fails to state a

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claim in count four.

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Count four fails for two additional reasons. First, Plaintiff has failed to allege that

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he has been prosecuted under multiple statutes, so this issue does not appear to be ripe.

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Second, Blockburger1 looks at overlapping elements, not overlapping underlying goals of

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statutes, for double jeopardy purposes. Plaintiff does not allege any elements overlap. For

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these additional reasons, count four will be dismissed below.

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With respect to count five, Plaintiff claims the ordinance is overbroad and vague
and is unconstitutional for these reasons.

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A law is void for vagueness in violation of Due Process where
“persons of common intelligence must necessarily guess at meaning and
differ as to application.” Smith v. Goguen, 415 U.S. 566, 572 n. 8, (1974)
(citations omitted). Due process requires that laws provide persons subject to
regulation with a “reasonable opportunity to know what [conduct] is
prohibited, so that [they] may act accordingly.” Grayned v. City of Rockford,
408 U.S. 104, 108 (1972); Women's Medical Professional Corp. v.
Voinovich, 911 F.Supp. 1051, 1063 (S.D. Ohio 1995). Due process requires
that a law must be sufficiently defined “to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the
statute.” Colautti v. Franklin, 439 U.S. 379, 390 (1979); see also Kolender

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…[O]nly “where the two offenses for which the defendant is punished or
tried cannot survive the ‘same-elements’ test, [does] the double jeopardy bar
appl[y].” Id. The “same-elements” test was enunciated by the Court in
Blockburger v. United States: “[W]here the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.” 284 U.S.
299, 304 (1932).
Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir. 2013).

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v. Lawson, 461 U.S. 352, 357 (1983). Additionally, the law must define the
prohibited conduct with sufficient definiteness that it does not encourage
arbitrary or discriminatory enforcement. See Kolender, 461 U.S. at 357;
Colautti, 439 U.S. at 390. Furthermore, vague standards of unlawful conduct,
coupled with the prospect of arbitrary enforcement, will inevitably cause
people to “steer far wider of the unlawful zone ... than if the boundaries of
the forbidden areas were clearly marked.” Grayned, 408 U.S. at 109. It is a
fundamental principle of due process that persons “‘of common intelligence’
not be forced to guess at the meaning of the criminal law.” Smith v. Goguen,
415 U.S. at 574.

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Forbes v. Woods, 71 F. Supp. 2d 1015, 1018 (D. Ariz. 1999), aff'd sub nom. Forbes v.

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Napolitano, 236 F.3d 1009 (9th Cir. 2000), amended, 247 F.3d 903 (9th Cir. 2000), and

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amended, 260 F.3d 1159 (9th Cir. 2001) (emphasis added).

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When considering a facial challenge under the First Amendment, a
law may be invalidated “as overbroad if ‘a substantial number of its
applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.’” The challenging party “need not necessarily introduce
admissible evidence of overbreadth, but generally must at least ‘describe the
instances of arguable overbreadth of the contested law.’ The overbreadth
doctrine exists ‘out of concern that the threat of enforcement of an overbroad
law may deter or “chill” constitutionally protected speech—especially when
the overbroad statute imposes criminal sanctions.’ Ultimately, when
assessing First Amendment facial challenges, the Court must not “apply the
‘strong medicine’ of overbreadth analysis where the parties fail to describe
the instances of arguable overbreadth of the contested law.”

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Briggs v. Yi, 687 F. Supp. 3d 848, 861–62 (D. Alaska 2023) (footnotes omitted) (emphasis
added).

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Preliminarily, an overbreadth challenge and a void for vagueness challenge are two
distinct arguments that cannot be intermingled, as Plaintiff has done, into a single theory.
(Doc. 5 at 7-9). Because of this lack of clarity, it is difficult for the Court to screen this
count.

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Turning first to Plaintiff’s argument that the law is overbroad, Plaintiff seems to
facially attack the ordinance arguing it prohibits conduct beyond the ordinance’s goal,2 not
conduct that chills first amendment speech. Thus, Plaintiff fails to articulate a basis to find
the statute unconstitutional on the ground that it is overbroad.

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With respect to vagueness, construing Plaintiff’s amended complaint liberally (and

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The Court is unclear how Plaintiff has determined “goals” of the ordinance because
Plaintiff cites nothing to support these assertions.
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without the benefit of adversarial testing) the Court will not dismiss Plaintiff’s vagueness

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challenge. Specifically, Plaintiff alleges that the ordinance is so vague as to permit

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discriminatory enforcement, which the Court finds states a claim.

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Although the Court allows claims 1 and 2, and part of claim 5, to proceed past this

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preliminary screening, it does so without prejudice to Defendant making any motions it

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deems appropriate. Coleman v. Maldnado, 564 F. App’x 893, 894 (9th Cir. 2014) (a district

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court may properly grant a motion to dismiss despite a prior screening order finding the

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complaint stated a claim); Jones v. Sullivan, 19-CV-0025BKSCFH, 2020 WL 5792989, at

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*5 (N.D.N.Y. Sept. 29, 2020) (“A court’s initial screening under § 1915(e) and/or § 1915A

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does not preclude a later dismissal under Fed. R. Civ. P. 12(b)(6).”).

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IV.

Conclusion

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Based on the foregoing,

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IT IS ORDERED GRANTING the application for leave to proceed in forma

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pauperis, without prepayment of costs or fees or the necessity of giving security therefor

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(Doc. 2).

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IT IS FURTHER ORDERED that Counts three, four and part of Count five are
dismissed, without prejudice, as specified above.

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IT IS FINALLY ORDERED that service by waiver or service of the summons and

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complaint shall be at government expense on the defendant by the U.S. Marshal or his

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authorized representative.3

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The Court directs the following:

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(1) The Clerk of Court must send Plaintiff a service packet including the

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Amended Complaint (Doc. 5), this Order, USM-285, and both summons and request for

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waiver forms for the Defendant.

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(2) Plaintiff must complete and return the service packet to the Clerk of

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Court within 30 days of the date of filing of this Order. The United States Marshal will not

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provide service of process if Plaintiff fails to comply with this Order. If Plaintiff does not

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See 28 U.S.C. § 1915(d).
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timely return the service packet, this action may be dismissed.

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(3) If Plaintiff does not either obtain a waiver of service of the summons or

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complete service of the Summons and Complaint on Defendant within 90 days of this

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Order, the action may be dismissed. Fed. R. Civ. P. 4(m).

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(4) The United States Marshal must retrain the Summons, a copy of the
Amended Complaint, and a copy of this Order for future use.

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(5) The United States Marshal must notify Defendant of the commencement

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of this action and request waiver of service of the summons pursuant to Rule 4(d) of the

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Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this

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Order.

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(6) If Defendant agrees to waive service of the Summons and Amended

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Complaint, Defendant must return the signed waiver forms to the United States Marshal,

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not the Plaintiff, within 30 days of the date of the notice and request for waiver of service

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pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of

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personal service.

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(7) The Marshal must immediately file signed waivers of service of the

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summons. If a waiver of service of summons is returned as undeliverable or is not returned

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by a Defendant within 30 days from the date the request for waiver was sent by the Marshal,

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the Marshal must:

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(a) personally serve copies of the Summons, Amended Complaint,

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and this Order upon Defendant pursuant Rule 4(e)(2) of the Federal Rules of

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Civil Procedure; and

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(b) within 10 days after personal service is effected, file the return of

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service for Defendant, along with evidence of the attempt to secure a waiver

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of service of the summons and of the costs subsequently incurred in effecting

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service upon Defendant. The costs of service must be enumerated on the

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return of service form (USM-285) and must include the costs incurred by the

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Marshal for photocopying additional copies of the Summons, Amended

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Complaint, or this Order and for preparing new process receipt and return

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forms (USM-285), if required. Costs of service will be taxed against the

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personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of

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Civil Procedure, unless otherwise ordered by the Court.

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Dated this 5th day of March, 2025.

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