Elliott v. Eustace et al

Filing 5

ORDER dismissing pla's complaint 1 for failure to comply with Federal Rule of Civil Procedure 8(a). FURTHER ORDERED denying as moot 4 Motion for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that Plaintiff may file an Amended Com plaint in compliance with Rule 8(a) no later than 30 days from the date of this order. Plaintiff may file another Motion to Proceed in Forma Pauperis at that time if he desires. If no Amended Complaint is filed, this case will be dismissed without further notice. (See document for full details). Signed by Judge Mary H Murguia on 7/18/10.(LAD)

Elliott v. Eustace et al

Doc. 5

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Robert J. Eustace and Annette M. Eustace,) ) ) Defendants. ) ) Bartlett Elliot,

No. CV 10-8109-PCT-MHM ORDER

Pending before the Court is Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc. # 4). The Court has screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2) and will dismiss it for failure to state a claim. "[S]ection 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Rule 8(a) of the Federal Rules of Civil Procedure requires that: A pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

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Here, among other defects, Plaintiff's complaint fails to allege an appropriate basis for federal subject matter jurisdiction: the denial of the "pursuit of happiness" under the Declaration of Independence is not a sufficient basis to invoke the jurisdiction of the Court. The Court will give Plaintiff one opportunity to amend the complaint. Plaintiff must: make clear his allegations in short, plain statements with each claim for relief identified in separate sections. In the amended complaint, [Plaintiff] must write out the rights he believes were violated, the name of the person who violated the right, exactly what that individual did or failed to do, how the action or inaction of that person is connected to the violation of [Plaintiff's] rights, and what specific injury [Plaintiff] suffered because of the other person's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Each claim of an alleged violation must be set forth in a separate count. Any amended complaint filed by [Plaintiff] must conform to the requirements of Rules 8(a) and (e)(1) of the Federal Rules of Civil Procedure. Kennedy v. Andrews, 2005 WL 3358205, *3 (D. Ariz. 2005). Accordingly, IT IS ORDERED dismissing Plaintiff's complaint for failure to comply with Federal Rule of Civil Procedure 8(a). (Doc. #1) IT IS FURTHER ORDERED denying as moot Plaintiff's Motion to Proceed in Forma Pauperis. (Doc. # 4) IT IS FURTHER ORDERED that Plaintiff may file an Amended Complaint in compliance with Rule 8(a) no later than 30 days from the date of this order. Plaintiff may file another Motion to Proceed in Forma Pauperis at that time if he desires. If no Amended Complaint is filed, this case will be dismissed without further notice. DATED this 18th day of July, 2010.

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