Baker v. Maverick Country Store Incorporated

Filing 4

ORDER that pursuant to 28 U.S.C. § 1915(e)(2) Plaintiff's 1 Complaint is dismissed for failure to comply with Rule 8, with leave to file an amended complaint by 07/20/11; if Plaintiff elects not to file an amended complaint by 07/20/11, t he Clerk shall dismiss this action without further Order of the Court; if Plaintiff elects to file an amended complaint the complaint may not be served until and unless the Court screens the amended complaint pursuant to 18 U.S.C. § 1915(e)(2). Signed by Judge G Murray Snow on 06/20/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cathy Jayne Baker,

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Plaintiff,

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vs.

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Maverick Country Store Inc.,
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Defendant.
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No. CV-11-8092-PCT-GMS
ORDER

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Pending before the Court is Plaintiff’s Application to Proceed in District Court

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Without Prepaying Fees or Costs (Doc. 2), which will be granted. The Court will screen

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Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2). Pursuant to that screening

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Plaintiff’s Complaint is dismissed.

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I.

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Screening Complaint Under 28 U.S.C. § 1915(e)(2)
A. Legal Standards
1. 28 U.S.C. § 1915(e)(2)

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Congress provided with respect to in forma pauperis cases that a district court “shall

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dismiss the case at any time if the court determines” that the “allegation of poverty is untrue”

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or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on which

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relief may be granted,” or “seeks monetary relief against a defendant who is immune from

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such relief.” 28 U.S.C. § 1915(e)(2). While much of § 1915 outlines how prisoners can file

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proceedings in forma pauperis, section 1915(e) applies to all in forma pauperis proceedings

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not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). “It

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is also clear that section 1915(e) not only permits but requires a district court to dismiss an

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in forma pauperis complaint if it fails to state a claim or if it is frivolous or malicious.

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“[A] complaint, containing both factual allegations and legal conclusions is frivolous

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where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

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325 (1989). Furthermore, “a finding of factual frivolousness is appropriate when the facts

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alleged rise to the level of the irrational or wholly incredible, whether or not there are

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judicially recognized facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25,

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33 (1992). “A case is malicious if it was filed with the intention or desire to harm another.”

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Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).
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Rule 8, Federal Rules of Civil Procedure

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A claim must be stated clearly enough to enable each defendant to frame a responsive

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pleading. A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Each allegation must be simple,

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concise, and direct.” Fed. R. Civ. P. 8(d)(1). In addition, the complaint must include “a

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demand for the relief sought. . . . “ Fed. R. Civ. P. 8(a)(3). Finally, it must also have “a short

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and plain statement of the grounds for the court’s jurisdiction. Fed. R. Civ. P. 8(a)(1).

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In order to assist litigants to understand the Rule 8(d) requirements that averments “be

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simple, concise and direct,” Rule 84 of the Federal Rules of Civil Procedure provides

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samples in an Appendix of Forms, which are “intended to indicate the simplicity and brevity

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of statement which the rules contemplate.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.

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1996). Examples of types of complaints for different types of claims are contained in forms

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10 through form 21. In addition to setting forth why the federal court has jurisdiction over

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Plaintiff’s claims a complaint should fully set forth “who is being sued, for what relief, and

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on what theory, with enough detail to guide discovery.” McHenry, 84 F.3d at 1177. In

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addition, to satisfy Rule 8, each claim must be stated in a separate count. Bautista v. Los

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Angeles, 216 F.3d 837, 840-41 (9th Cir. 2000).

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B. Analysis
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1. Plaintiff’s Complaint

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Plaintiff’s complaint falls short of satisfying the requirements of Rule 8. It does not

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allege a legal basis for this Court to exercise jurisdiction over this lawsuit. To the extent that

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Plaintiff seeks to bring a claim for sex discrimination under Title VII, Plaintiff must first

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exhaust the procedure available to make her claim with the Equal Employment Opportunity

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Commission. Plaintiff has failed to certify that she has exhausted that procedure. Sommatino

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v. U.S., 255 F.3d 704 (9th Cir. 2001). She has not established, therefore, that this Court has

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jurisdiction over her claim.

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2. Leave to Amend

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Plaintiff will be given an opportunity, if she so chooses, to amend her complaint. In

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the amended complaint, Plaintiff must state what rights she believes were violated. See Rizzo

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v. Goode, 423 U.S. 362, 371-72, 377 (1976), Each claim of an alleged violation must be set

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forth in a separate count. The amended complaint must also state why the federal court has

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jurisdiction over Plaintiff’s claims. Any amended complaint filed by Plaintiff must conform

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to the requirements of Rule 8(a) and (d)(1) of the Federal Rules of Civil Procedure.

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Plaintiff is advised that if she elects to file an amended complaint and if she fails to

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comply with the Court’s instructions explained in this Order, the action will be dismissed

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pursuant to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil

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Procedure. See McHenry, 84 F.3d at 1177 (affirming dismissal with prejudice of amended

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complaint that did not comply with rule 8(a)); Nevijel v. North Coast Life Ins. Co., 651 F.2d

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671, 673-74 (9th Cir. 1965)(affirming dismissal without leave to amend second complaint

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that was “so verbose, confused and redundant that its true substance, if any, [was] well

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disguised”).

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IT IS HEREBY ORDERED that pursuant to 28 U.S.C. § 1915(e)(2) Plaintiff’s

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Complaint (Doc. 1) is dismissed for failure to comply with Rule 8, with leave to file an

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amended complaint by July 20, 2011.

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IT IS FURTHER ORDERED that, if Plaintiff elects not to file an amended

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complaint by July 20, 2011, the Clerk shall dismiss this action without further Order of the

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Court.

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IT IS FURTHER ORDERED that, if Plaintiff elects to file an amended complaint

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the complaint may not be served until and unless the Court screens the amended complaint

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pursuant to 18 U.S.C. § 1915(e)(2).

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DATED this 20th day of June, 2011.

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