Evans v. McAllister

• Decision Date: 09 May 2023
• Docket Number: Civ. 23-132-TUC-CKJ
• Parties: Austin Chance Evans, Plaintiff, v. Megann McAllister, Defendant.
• Court: U.S. District Court — District of Arizona

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Austin Chance Evans, Plaintiff, v. Megann McAllister, Defendant.

Civ. No. 23-132-TUC-CKJ

United States District Court, D. Arizona

May 9, 2023

ORDER

CINDY K. JORGENSON, UNITED STATES DISTRICT JUDGE.

On March 17, 2023, Plaintiff Austin Chance Evans ("Evans"), filed a pro se Complaint (Doc. 1). Evans has also filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) ("Application"), a Motion to Allow Electronic Filing by a Party Appearing Without an Attorney and Supporting Information (Doc. 3), a Motion to Reclassify the Case (Doc. 6), a Motion to Submit Records (Doc. 7), a Motion for Default Judgment (Doc. 8), Motion for Referral to Prosecutor's Office (Doc. 9), a Motion to Submit Proof of Service (Doc. 11), a Request by Non-Prisoner Pro Se Party for Electronic Noticing (Doc. 18) and a Motion to Dismiss Motions/Order (Doc. 23).

Defendant Megann McAllister ("McAllister") has filed an Amended Motion to Dismiss Complaint for Lack of Personal Jurisdiction, Lack of Subject Matter Jurisdiction, Improper Venue, and Failure to State a Claim in Which Relief May Be Granted Motions (Doc. 15), a Motion to Strike (Doc. 16), and a Motion for Order Declaring Plaintiff Vexatious Litigant (Doc. 17).

I. Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2)

The Court may allow a plaintiff to proceed without prepayment of fees when it is shown by affidavit that he "is unable to pay such fees[.]" 28 U.S.C. § 1915(a)(1). Evan's affidavit indicates Evans expects to receive $768.00 monthly in gifts and does not list any expenses. As Evans has not indicated he has any expenses, the Court cannot say he is unable to pay the fees. The Court will deny this request with leave to resubmit. Evans shall either pay the filing fee or submit a new Application to Proceed in District Court Without Prepaying Fees or Costs within thirty (30) days of the date of this Order. Failure to either timely pay the filing fee or submit a new Application will result in dismissal of this action.

II. Motion to Allow Electronic Filing by a Party Appearing Without an Attorney and Supporting Information (Doc. 3)

Parties appearing without an attorney may request to "file electronically in a form prescribed the Clerk of Court." LRCiv 5.5(e); see also LRCiv 5.5(a) and (d), Electronic Case Filing Administrative Policies and Procedures Manual § II.B.3. Evans has submitted the Clerk of Court form. However, Evans' request does not state he has access to a .pdf-compatible word processor or .pdf conversion software. See U.S. District Court, District of Arizona, Requirements for Using Electronic Case Filing, https://www.azd.uscourts.gov/efiling/requirements (last accessed 4/27/23). Evans has not shown, therefore, he is eligible for electronic filing. The Court will deny this request with leave to resubmit.

III. Motion to Reclassify the Case (Doc. 6)

Asserting the defense has made this request, Evans asks this case be reclassified from "Other Fraud" to "Wire Fraud" pursuant to 18 U.S.C. § 1343. However, Evans refers to a criminal statute and the form in which "Other Fraud" was selected, see Civil Cover Sheet (Doc. 1-1), is used in civil cases. Indeed, "Wire Fraud" is not one of the options available on the form. (Id.). The Court will deny this request.

IV. Motion to Submit Records (Doc. 7)

Evans requests permission to submit multiple documents and images that show possible evidence tampering. However, at this pleading stage of the proceedings, the Court is considering, as discussed infra, whether Evans has stated a claim upon which relief may be granted. The Court does not find it appropriate to consider at this time whether any evidence tampering has occurred. The Court, therefore, will dismiss this request as not ripe. Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967) (generally, courts invoke the ripeness doctrine and refuse to decide matters which would involve "entangling themselves in abstract disagreements . . . "); Jacobus v. Alaska, 338 F.3d 1095, 1104 (9th Cir. 2003) (requirement of ripeness ensures that issues are definite and concrete, not hypothetical or abstract). However, the Court declines to strike the documents attached to Evans' request.

V. Motion for Default Judgment (Doc. 8)

Evans requests default judgment be entered because McAllister has tampered with evidence. Indeed, Fed.R.Civ.P. 37(e) allows for the entry of a default judgment as a sanction for spoliation of evidence. However, in this case, a filing fee has not been paid, the Application has not been approved, the claims against McAllister have not yet been determined pursuant to a screening order, see Section IX, infra, and McAllister has sought to defend against this action. See Fed.R.Civ.P. 55 ("When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default."). The Court, therefore, will dismiss this request as not ripe. Abbott Laboratories v. Gardner, 387 U.S. at 148.

VI. Motion for Referral to Prosecutor's Office (Doc. 9)

Evans requests this matter be referred to the prosecutor's office for possible charges against McAllister. However, "the discretion to decide whether to bring charges and which charges to bring is clearly a part of the executive authority-not the judicial authority." United States v. Major, 676 F.3d 803, 811 (9th Cir. 2012). Indeed, "[c]ourts generally have no place interfering with a prosecutor's discretion regarding whom to prosecute, what charges to file,..." United States v. Banuelos-Rodriguez, 215 F.3d 969,976 (9th Cir. 2000); see also United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992) ("A judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them."). As it "is axiomatic that the prosecution of crimes is not a proper exercise of the judicial function[,]" United States v. Neal, 101 F.3d 993, 997 (4th Cir. 1996), citations omitted, the Court will deny this request.

VII. Motion to Submit Proof of Service (Doc. 11)

Evans requests to submit proof of service of McAllister. However, as a Complaint has not yet been screened and accepted by the Court, the Court will deny this request.

VIII. Request by Non-Prisoner Pro Se Party for Electronic Noticing (Doc. 18)

Evans has requested to receive electronic noticing of court filings. However, in completing the form, Evans has failed to designate an email address to receive the electronic notices. The Court, therefore, will deny this request with leave to resubmit.

IX. Screening Order

This Court is required to dismiss a case if the Court determines that the allegation of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action "(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)(B).

X. General Complaint Requirements

A complaint is to contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Rule 8(a), Fed.R.Civ.P. While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroftv. Iqbal, 556U.S. 662,678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Especially where the pleader is pro se, the pleading should be liberally construed in the interests of justice. Johnson v. Reagan, 524 F.2d 1123 (9th Cir. 1975). Indeed, a "complaint [filed by a pro se plaintiff] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Hebbe v. Pliler, 627F.3d338,342 (9th Cir. 2010) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

A complaint must set forth sufficient facts that serve to put defendants on notice as to the nature and basis of the claim(s). Furthermore, all allegations of a claim are to be set forth in numbered paragraphs that should be limited to a single set of circumstances. Fed.R.Civ.P. 10(a). "Each claim . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth." Id. Failure to set forth claims in such a manner places the onus on the court to decipher which, if any, facts support which claims, as well as to determine whether a plaintiff is entitled to the relief sought. Haynes v. Anderson & Strudwick, Inc., 508 F.Supp. 1303 (D.C.Va. 1981). Enforcement of this rule is discretionary with the Court, but such enforcement is appropriate where it is necessary to facilitate a clear presentation of the claims. See, Benoit v. Ocwen Financial Corp., Inc., 960 F.Supp. 287 (S.D.Fla. 1997), affirmed 162 F.3d 1177 (compliance with rule required where allegations were so confusing and conclusory, claims were commingled, and impossible to determine nature of claims).

XI. Requirement that Action State a Claim on Which Relief Can be Granted

The United States Supreme Court has determined that, in order to survive a motion to dismiss for failure to state a claim, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its facts." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).^[1] While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level." Id. at 555. Indeed, Fed. R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled to relief "rather than a blanket assertion" of entitlement to relief. Id. at...