Gonzalez v. Tucson City Court et al

Filing 5

ORDERED DENYING Plaintiff's Application to Proceed (Doc. 2 ). Plaintiff must pay the $350.00 filing fee and the $55.00 administrative fee within 30 days of the date of this Order, or file a renewed Application to Proceed addressing th e issues the Court discussed above. Failure to pay these fees or file a renewed Application within 30 days will result in the dismissal of this case without further notice. IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE Plaintiff's Complaint (Doc. 1 ). Plaintiff may amend his Complaint within 30 days of the date of this Order. Signed by Judge John C Hinderaker on 7/3/2024. (ARC)

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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 Andy Gonzalez, Plaintiff, 10 11 v. 12 Tucson City Court, et al., 13 Defendants. No. CV-24-00300-TUC-JCH ORDER 14 15 Pro se Plaintiff Andy Gonzalez has filed a civil Complaint naming as defendants the 16 Tucson City Court, the Tucson Police Department, the Department of Economic Security, 17 and several individuals including Benabidaz and De la Cruz. See Doc. 1 at 1–4. In his 18 Complaint, Plaintiff asserts only that Defendants Benabidaz and De la Cruz "have all my 19 assets my moneys to make the attorneys and Court fees." Doc. 1 at 4. He further states that 20 he "need[s] to survive[] and make a living like everybody else, thank you." Id. Plaintiff 21 also filed an Application to Proceed In District Court Without Prepaying Fees or Costs. 22 Doc. 2. 23 I. Application to Proceed In District Court Without Prepaying Fees or Costs 24 In his Application to Proceed, Plaintiff asserts that he cannot pay the filing costs 25 because he has received only $35.60 per month in retirement income in the past 12 months. 26 Doc. 2 at 2. But Plaintiff also asserts that he pays $1,200 per month in rent, $900 per month 27 in expenses, and drives a 1999 Lexus worth $5,000. See id. at 2–3. 28 The Court declines to exercise its discretion to grant Plaintiff's Application because 1 the Application is facially implausible. Retirement income is typically much more than $35 2 per month. It also is far less than Plaintiff would need to pay $2,100 each month in expenses 3 or maintain his Lexus vehicle. The Court will give Plaintiff 30 days from the date of this 4 Order to pay the $350.00 filing fee and the $55.00 administrative fee, or to file a renewed 5 Application to Proceed addressing the issues identified above. Failure to pay these fees or 6 file a renewed Application within 30 days will result in the dismissal of this case without 7 further notice. 8 II. 9 Statutory Screening of a Pro Se Complaint A. Legal Standards 10 Under 28 U.S.C. § 1915(e)(2), notwithstanding the payment of any filing fee, the 11 Court shall dismiss the case "if the court determines that . . . (B) the action . . . (i) is frivolous 12 or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks 13 monetary relief against a defendant who is immune from such relief." 14 A pleading must contain a "short and plain statement of the claim showing that the 15 pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 16 not demand detailed factual allegations, "it demands more than an unadorned, the- 17 defendant-unlawfully-harmed-me accusation." 18 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere 19 conclusory statements, do not suffice." Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 20 "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a 21 claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 22 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content 23 that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged." Id. "Determining whether a complaint states a plausible claim for 25 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 26 experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual 27 allegations may be consistent with a constitutional claim, a court must assess whether there 28 are other "more likely explanations" for a defendant's conduct. Id. at 681. -2- 1 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 2 must "continue to construe [self-represented litigant's] filings liberally." Hebbe v. Pliler, 3 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a self-represented litigant] 'must 4 be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting 5 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 6 If the Court determines that a pleading could be cured by the allegation of other 7 facts, a self-represented litigant is entitled to an opportunity to amend a complaint before 8 dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en 9 banc). 10 B. Analysis 11 The Complaint does not refer to any conduct by Defendants State of Arizona, the 12 Arizona Department of Economic Security, Tucson City Court, Tucson Police Department, 13 or Felix. The Court will therefore dismiss these Defendants without prejudice for failure to 14 state a claim. 15 The Complaint also does not state any facts related to Defendants Benabidaz or De 16 La Cruz. Plaintiff's allegations are too vague and conclusory to state a claim or provide the 17 Court any guidance for what claim Plaintiff is trying to state. He does not provide any 18 context for his assertion that Defendants have all his assets and money, or how that is 19 related to attorneys fees and Court costs. It is not enough for Plaintiff simply to assert that 20 Defendants broke the law. He must instead allege specific facts showing that the 21 circumstances surrounding his assets and money entitle him to relief. Plaintiff is advised 22 to Notice to Self-Represented Litigant informational documents for more information. See 23 Doc. 4. Because Plaintiff has failed to allege any specific facts showing his entitlement to 24 relief against Defendants Benabidaz and De la Cruz, the Court will also dismiss them for 25 failure to state a claim. 26 C. Leave to Amend 27 The Court finds that dismissal with leave to amend is appropriate. See Noll v. 28 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute as stated in Akhtar v. -3- 1 Mesa, 698 F.3d 1202 (2012) (leave to amend is liberally granted unless absolutely clear 2 deficiencies cannot be cured by amendment). The Court has provided the reasons for the 3 dismissal to permit Plaintiff to make an intelligent decision whether to file an Amended 4 Complaint. See Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962). Furthermore, 5 Plaintiff is advised that all causes of action alleged in the original Complaint which are not 6 alleged in any Amended Complaint will be waived. Hal Roach Studios v. Richard Feiner 7 & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the 8 original"). 9 Any Amended Complaint filed by Plaintiff must be retyped or rewritten in its 10 entirety and may not incorporate any part of the original Complaint by reference. An 11 Amended Complaint must be clearly designated as an Amended Complaint on the face of 12 the document and formatted in compliance with L.R.Civ 7.1. Plaintiff is advised that if an 13 Amended Complaint fails to state a claim upon which relief can be granted, the Court likely 14 will dismiss this action. Additionally, Plaintiff is advised that if he fails to timely comply 15 with every provision of this Order, this action will be dismissed under Fed. R. Civ. P. 16 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may 17 dismiss action for failure to comply with any order of the Court). 18 III. Order 19 Accordingly, 20 IT IS ORDERED DENYING Plaintiff's Application to Proceed (Doc. 2). Plaintiff 21 must pay the $350.00 filing fee and the $55.00 administrative fee within 30 days of the 22 date of this Order, or file a renewed Application to Proceed addressing the issues the Court 23 discussed above. Failure to pay these fees or file a renewed Application within 30 days will 24 result in the dismissal of this case without further notice. 25 /// 26 /// 27 /// 28 /// -4- 1 IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE 2 Plaintiff's Complaint (Doc. 1). Plaintiff may amend his Complaint within 30 days of the 3 date of this Order. 4 Dated this 3rd day of July, 2024. 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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