Telford v. Montana Land Exchange et al

Filing 6

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Holli Telford, Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by Holli Telford., Order Setting: ( Amended Pleadings due by 2/8/2019.) Signed by Magistrate Judge Jeremiah C. Lynch on 1/8/2019. (TCL) Modified on 1/8/2019: mailed to Telford with form (TAG).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
CV 19-2-BU-BMM-JCL

HOLLI TELFORD,
Plaintiff,

ORDER

vs.
MONTANA LAND EXCHANGE, M.
STOSICH, DOES REALTORS OF
MONTANA LAND EXCHANGE, STAR
VALLEY RANCH TOWN, DOES
EMPLOYEES OF TOWN, and U.S.
BANK,
Defendants.
I.

Introduction
Plaintiff Holli Telford, proceeding pro se, filed an application requesting

leave to proceed in forma pauperis. Teleford submitted a declaration that makes the
showing required by 28 U.S.C. § 1915(a). Because it appears she lacks sufficient
funds to prosecute this action IT IS HEREBY ORDERED that Telford’s
application is GRANTED. This action may proceed without prepayment of the
filing fee, and the Clerk of Court is directed to file Telford’s lodged complaint as
of the filing date of her request to proceed in forma pauperis.

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The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court will review Telford’s pleading to consider whether this action can
survive dismissal under the provisions of section 1915(e)(2), or any other provision
of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th Cir. 2005).
II.

Background
Telford filed a complaint which provides very limited factual information.

She references a real estate transaction in which she was involved in 2006, and two
different criminal prosecutions against her in 2006 and 2007 accusing her of
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allegedly forging notary signatures apparently during the course of the real estate
transaction. And she references numerous laws allegedly violated including five
different federal laws, and seven different causes of action asserted under Montana
common law. But Telford’s allegations do not describe specific acts or omissions
of any specific Defendant that she believes directly violated any of the laws she
lists in her complaint. Thus, her pleading fails to allege any specific claim for relief
against any Defendant identified in her pleading.
III.

Discussion
Because Telford is proceeding pro se the Court must construe her pleading

liberally, and the pleading is held “to less stringent standards than formal pleadings
drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See also
Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
Even with liberal construction of Telford’s allegations, the Court concludes
her allegations fail to expressly state any claim for relief. As presently pled,

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Telford’s allegations do not expressly state any cognizable and viable claim for
relief.
Telford’s complaint fails to comply with at least two provisions of the
Federal Rules of Civil Procedure: Rules 8(a)(2) and 10(b). Rule 8(a)(2) requires
only “a short and plain statement of the claim showing that the pleader is entitled
to relief[.]” Lengthy, detailed and “[s]pecific facts are not necessary; the statement
need only [...] give the defendant fair notice of what the ... claim is and the grounds
upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal
quotations and citations omitted).
Although the rules require only a short and plain statement, to establish
liability for violation of any particular law the plaintiff must still set forth certain
basic facts demonstrating how each defendant caused or personally participated in
causing a deprivation of the plaintiff's protected rights. Arnold v. IBM, 637 F.2d
1350, 1355 (9th Cir. 1981). Thus, in any complaint the plaintiff must present short,
plain statements which concisely describe: (1) the federal or state law or right the
plaintiff believes was violated; (2) the name of the defendant(s) who violated the
right; (3) exactly what each defendant did or failed to do; (4) how the action or
inaction of that defendant is connected to, or caused the violation of plaintiff’s

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rights protected under the referenced laws; and (5) what injury plaintiff suffered
because of that defendant’s conduct.
Here, Telford’s allegations do not include the necessary short and plain
factual statements asserting viable claims for relief against any person. Telford’s
vague, unspecific, and limited factual allegations make it impossible for the Court
to determine whether she can state any valid legal claim, or whether her allegations
are frivolous and subject to dismissal under 28 U.S.C. § 1915(e)(2). See Dean Reed
Production Corp. v. Los Angeles County Dept. of Children and Family Services,
2006 WL 3734656, *1 (E.D. Cal. 2006). A totally incomprehensible claim or
complaint is without an arguable basis in law and is subject to dismissal. Jackson
v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989), superseded by 28 U.S.C. §
1915(e)(2)(B) on other grounds.
Additionally, Telford’s pleading must comply with Fed. R. Civ. P. 10(b).
Rule 10(b) requires that “[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.”
This permits the individual defendants to answer the allegations by simply
referring by number to the paragraphs of the complaint. Id.

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Based on the foregoing, and in view of Telford’s pro se status, the Court will
afford her an opportunity to file an amended complaint. In doing so, Telford’s
pleading must comply with Rules 8(a) and 10(b).
IV.

Conclusion
Based on the foregoing, the Court finds Telford’s complaint, as presently

pled, is subject to dismissal for failure to state a claim on which relief could be
granted. But the Court will afford her an opportunity to file an amended pleading
that conforms to the requirements of this order.
Therefore, IT IS ORDERED that on or before February 8, 2019, Telford
shall file an amended complaint. The Clerk of Court is directed to provide her with
a standard form for filing an amended complaint. Pursuant to Fed. R. Civ. P. 8(a),
Telford’s amended complaint shall set forth a short and plain statement of her
claims against each individual defendant showing that she is entitled to relief.
At all times during the pendency of this action, Telford shall immediately
advise the Court of any change of address and its effective date. Such notice shall
be captioned “NOTICE OF CHANGE OF ADDRESS.” Failure to file a NOTICE
OF CHANGE OF ADDRESS may result in the dismissal of the action for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b), or for failure to state a claim for
relief.

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Telford is also advised that her failure to prosecute this action, to comply
with the Court’s orders, or to comply with the Federal Rules of Civil Procedure
may result in a recommendation that this case be dismissed with prejudice pursuant
to Fed. R. Civ. P. 41(b). The Court may dismiss this case under Rule 41(b) sua
sponte under certain circumstances. See, e.g., Link v. Wabash Railroad Co., 370
U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest
Serv., 403 F.3d 683, 689 (9th Cir. 2005).
DATED this 8th day of January, 2019.

Jeremiah C. Lynch
United States Magistrate Judge

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