Walker v. Walker

• Decision Date: 03 June 2021
• Docket Number: No. CV 21-0904 PHX CDB,CV 21-0904 PHX CDB
• Parties: Samantha Romel Walker, Richard J. Johnson, Plaintiffs, v. Renee Walker, Christian Vaughn, Defendants.
• Court: U.S. District Court — District of Arizona

Samantha Romel Walker, Richard J. Johnson, Plaintiffs, v. Renee Walker, Christian Vaughn, Defendants.

No. CV 21-0904 PHX CDB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 3, 2021

REPORT AND RECOMMENDATION

TO THE HONORABLE STEPHEN M. McNAMEE:

Plaintiffs, who proceed pro se, bring this civil rights matter pursuant to 42 U.S.C. § 1983. The Complaint was docketed May 20, 2021, in tandem with a motion seeking leave to proceed without prepayment of costs and fees. (ECF No. 1; ECF No. 2). Plaintiffs are residents of Texas and the Complaint names as Defendants Renee Walker, a resident of Arizona, and Christian Vaughn, a resident of Texas, who Plaintiffs allege is an employee of the Texas Department of Family and Protective Services' division of Child Protective Services. To date Plaintiffs have not consented to the exercise of magistrate judge jurisdiction over this matter, no summons has been issued, and Defendants have not been served.

Before the Court is Plaintiffs' motion to proceed without prepayment of costs and fees. (ECF No. 2). Because it appears Plaintiffs' motion to proceed in forma pauperis is arguable,¹ and granting the motion would require the Complaint to be screened, and because upon screening it appears the Court is without jurisdiction to hear Plaintiffs' claims for relief, a decision on the motion to proceed in forma pauperis is dispositive. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b), and Rule 72.2(a)(2) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona.

I. Governing Law

Generally, parties who file an action in a federal district court must pay a filing fee. See 28 U.S.C. § 1914(a). However, 28 U.S.C. § 1915 permits indigent plaintiffs to apply for a fee waiver. Proceeding in forma pauperis in a civil case "is a privilege, not a right—fundamental or otherwise." White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). Granting or denying this privilege is a matter within the Court's discretion. See,e.g., Denton v. Hernandez, 504 U.S. 25, 33 (1992); Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998). Such a motion may be granted when the plaintiff has both established their indigency and docketed a complaint which presents at least one nonfrivolous claim for relief. See, e.g., Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 756-57 (7th Cir. 1988). In civil actions leave to proceed in forma pauperis "should be allowed only in exceptional circumstances." Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963) (internal quotations omitted).

The Court must dismiss a complaint filed in tandem with a petition to proceed in forma pauperis if it is satisfied that the complaint "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). Before dismissing the complaint, the Court must conclude that it lacks an arguable basis either in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325-27 (1989).

. . . Section 1915(d)² is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit, see, e.g., Williams v. Goldsmith, 701 F.2d 603 (7th Cir. 1983), and claims of infringement of a legal interest which clearly does not exist . . .

Id. at 327.

Accordingly, the Court may dismiss a complaint pursuant to § 1915(e)(2)(B)(ii) if the claims are frivolous. See Denton v. Hernandez, 504 U.S. 25, 31 (1992); Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). Under the liberal rules applicable to pro se complaints, an action is frivolous if the plaintiff cannot make a rational argument on the law and facts in support of their claim. See Lopez v. Department of Health Servs., 939 F.2d 881, 882 (9th Cir. 1991); Van Sickle v. Holloway, 791 F.2d 1431, 1434 (10th Cir. 1988). Although pro se pleadings are liberally construed, conclusory and vague allegations are insufficient to supply the basis of a claim for relief. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Additionally, affording a civil rights complaint a liberal interpretation does not require the Court to supply essential elements of the claim that were not initially pled. Id. See also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011). Even pro se pleadings must contain a minimum level of factual support and a plaintiff should not be allowed to proceed in forma pauperis if the Court must invent scenarios not evident from the face of the complaint. See Richmond v. Cagle, 920 F. Supp. 955, 957 (E.D. Wis. 1996), cited in Staples v. Arizona Dep't of Econ. Sec., 2007 WL 864742, at *1 (D. Ariz. Mar. 20, 2007). To survive screening, "[t]he plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (internal quotations omitted).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint containing the factual elements of a cause of action but scattering them haphazardly throughout the complaint may be dismissed for failure to satisfy Rule 8. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); Amina v. WMC Fin. Co., 329 F. Supp. 3d 1141, 1161 & n.15 (D. Haw. 2018), aff'd, 812 F. App'x 509 (9th Cir. 2020). All allegations of a claim are to be set forth in numbered paragraphs that should be limited to a single set of circumstances. See Fed. R. Civ. P. 10(a). Failure to set forth claims in such a mannerplaces the onus on the Court to decipher which facts, if any, support which claims, as well as determining whether the plaintiff is entitled to the relief sought. See Carrigan v. California State Legislature, 263 F.2d 560, 566 (9th Cir. 1959); Haynes v. Anderson & Strudwick, Inc., 508 F. Supp. 1303, 1307 n.1 (D. Va. 1981); Oneal v. Flint, 2017 WL 4011129, at *2 (D. Ariz. July 28, 2017), report and recommendation adopted, 2017 WL 3978661 (D. Ariz. Sept. 11, 2017). Federal judges do not have "license . . . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Inv. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).

To state a cognizable claim for relief pursuant to § 1983, the plaintiff must show that they suffered a violation of rights protected by the Constitution; that the violation was caused by a person acting under color of state law; and damages. See Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991); Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Generally, private parties do not act under color of state law. See 42 U.S.C. § 12131 (defining a "public entity" as "any State or local government," "any department, agency, special purpose district, or other instrumentality of a State or States or local government"); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).

II. Plaintiff's Complaint

The Complaint asserts:

On or about January, 2021, Renee Walker, with the cooperation and approval of Christian Vaughn acting in concert without court approval. Without due process of law. Removed [M.W.] (a child), and [S.W.] (a child), both 8 year old twins, sons of Samantha Walker. The defendants took these children out of State of Texas to live in Arizona - effectively stopping petitioners from [exercising] court mandated visiting rights. Petitioners reside in East Texas. The children had been residing in The Woodlands/Huntsville, Texas, where access to them had been [available]. The move to Arizona stopped all visitation.

The [defendant] Renee Walker's move to Arizona is done also to avoid and avade [sic] Texas courts.

Cause #2129999 Walker County District Court, styled Samantha R. Walker vs. Renee Walker, Huntsville Texas.³

This is a suit for custody of the children.

Defendant Renee Walker [absconded] with children to avoid this suit.

(ECF No. 1 at 4-5). Plaintiffs also assert:

Comes now pro se plaintiffs . . . and files this civil rights lawsuit against the [herein] named defendants. For violation of the plaintiffs' rights to due process under both the 5th and the 14th Amendments to the U.S. Constitution these defendants denied the plaintiff the right to access of court.

During termination of parental rights.

Plaintiff was not present at hearing.

Nor a representative for the plaintiff, at this important hearing.

That took away all of the plaintiff's parental rights.

This violated petitioners [sic] access to court, because the plaintiffs were not [allowed] to be present at said hearing.

(ECF No. 1 at 8). Plaintiffs further allege:

Then Renee Walker, acting in concert with CPS Officer Christene Vaughn of the Huntsville CPS, with the tacit approval of the CPS office of Huntsville, moved the plaintiffs' children to the State of Arizona. Effectively terminating all visiting rights held by plaintiff.

No court action was held to avice [sic], allow, or condone this [arbitrary], capricious, and callous act by the Defendants.

[Further] violating the due

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