DeMillard v. Arizona
| Decision Date | 30 June 2021 |
| Docket Number | No. CV-21-8079-PCT-DMF,CV-21-8079-PCT-DMF |
| Parties | Eric Levanter DeMillard, et al., Plaintiffs, v. State of Arizona, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Plaintiff Eric Levanter DeMillard filed a pro se Complaint on behalf of himself and Michael Tallone (Doc. 1).1 Plaintiff Eric Levanter DeMillard also filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), which is a request for leave to proceed in this matter in forma pauperis.2 Plaintiff Eric Levanter DeMillard consented to proceed before a United States Magistrate Judge (Doc. 6).
On May 7, 2021, the Court granted Eric Levanter DeMillard's Application to Proceed in District Court Without Prepaying Fees or Costs, screened the Complaint, ordered that service of the Complaint may not proceed, and gave Plaintiff Eric LevanterDeMillard an opportunity to file a First Amended Complaint addressing the deficiencies in his Complaint identified in the Court's Order (Doc. 9).3 In the May 7, 2021, Order, the Court warned that if Plaintiff did not file a First Amended Complaint addressing all of the deficiencies in his Complaint within twenty-one (21) days of the date of the Court's Order, undersigned would proceed with a Report and Recommendation for dismissal without prejudice of the Complaint and this action (Id.).4
Plaintiff did not file a First Amended Complaint within twenty-one (21) days of the date of the Court's May 7, 2021, Order (Id.).5 Thus, undersigned proceeds with this Report and Recommendation for dismissal of this action without prejudice because the Complaint has numerous uncured deficiencies, including failure to meet basic pleading requirements, an improperly named/represented additional plaintiff, failure to meet jurisdictional requirements, and failure to state claims. In sections I, II, III, and IV, infra, the Court summarizes the applicable law. In section V, infra, the Court reviews the deficiencies of the Complaint, recommending dismissal of this action without prejudice.
Where, as here, a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). See also Lopez v. Smith, 203 F.3d 1122, 1126 fn. 7 (9th Cir. 2000) (). Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 8(a)(2) provides that a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Acomplaint that lacks such statement fails to state a claim and must be dismissed.
In determining whether a complaint fails to state a claim, the court assumes that all factual allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, "the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The pertinent question is whether the factual allegations, assumed to be true, "state a claim to relief that is plausible on its face." Id. (citing Twombly, 550 U.S. at 570).
Where a complaint contains the factual elements of a cause, but those elements are scattered throughout the complaint without any meaningful organization, the complaint does not set forth a "short and plain statement of the claim" for purposes of Rule 8, Federal Rules of Civil Procedure. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988). Thus, a complaint may be dismissed where it lacks a cognizable legal theory, lacks sufficient facts alleged under a cognizable legal theory, or contains allegations disclosing some absolute defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, fn. 1 (9th Cir. 1997).
To survive dismissal, a complaint must give each defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). In the absence of fair notice, a defendant "should not be required to expend legal resources to guess which claims are asserted against her or to defend all claims 'just in case.'" Gregory v. Ariz. Div. of Child Support Enforcement, No. CV11-0372-PHX-DGC, 2011 WL 3203097, at *1 (D. Ariz. July 27, 2011).
Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must "construe the pleadings liberally ... to afford the petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Under the pleadingstandard set by the Supreme Court's decision in Iqbal, however, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Further, "[a] district court should not dismiss a pro se complaint without leave to amend unless 'it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam)).
When the court grants leave to amend, the "court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). "Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors." Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). The court should not, however, advise the litigant how to cure the defects; this type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004).
The Court previously provided Plaintiff with notice of his Complaint's deficiencies, including pleading requirement deficiencies, and granted Plaintiff leave to amend within a reasonable period of time (Doc. 9). Despite that Plaintiff has made numerous improper filings in this matter since the Court's Order (see Docs. 10-17), Plaintiff has not timely filed any First Amended Complaint.
Although a non-attorney may appear in propria persona in his own behalf, that privilege is personal to him. McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966). "He has no authority to appear as an attorney for others than himself." Id.; see also C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987). Section 1654, 28 U.S.C, provides that in federal court, "parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." Significant is the language contained in the statute that limits theauthorization of civil litigants to "plead and conduct their own cases personally." (emphasis added). Courts have routinely adhered to the general rule prohibiting plaintiffs appearing in propria persona from pursuing claims on behalf of others in a representative capacity. Further, it does not appear that Plaintiff Eric Levanter DeMillard is an attorney authorized to practice in any court, let alone this Court.
Plaintiff Eric Levanter DeMillard cannot list any additional plaintiff on any complaint without proper legal basis to do so specifically set forth in the complaint. This requirement has not been met regarding the additional listed Plaintiff, Michael Tallone, in the Complaint that has been filed with the Court (Doc. 1). Plaintiff Michael Tallone is listed in the caption, but not described in the Complaint. Plaintiff Eric Levanter DeMillard cannot pursue claims in a representative capacity in these circumstances. This deficiency alone is cause for dismissal of Plaintiff Michael Tallone, who is referenced in the Complaint's caption.
The Court has an independent obligation to determine whether it has subject-matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Pursuant to Fed. R. Civ. P. 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."
This Court is a limited jurisdiction court; this court has no jurisdiction beyond that conferred upon it by federal statute. Brandt v. Bay City Super Mkt., 182 F.Supp. 937, 939 (N.D. Cal. 1960). Fed. R. Civ. P. 8(a)(1) requires that a complaint contain a "short and plain statement of the grounds for the court's jurisdiction." Further, the party asserting jurisdiction bears the burden of establishing jurisdiction. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). The United States Supreme Court has stated that a federal court must not disregard or evade the limits on its subject matter jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, the Court is obligated to evaluate its subject matter jurisdiction in each case and to dismiss a case when such jurisdiction is lacking. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004); Fed. R. Civ. P. 12(h)(3).Unlike state courts, federal courts only have jurisdiction over a limited number of cases, and those cases involve either a question of federal law ...
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