Opinion
CV 23-01121 PHX CDB
07-17-2023
Aneta Stanberry-Sproles, Plaintiff, v. Derek Eberhart, et al., Defendants.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
TO THE HONORABLE STEPHEN M. McNAMEE:
Plaintiff, proceeding pro se, has filed a Complaint, which does not state a specific basis for the Court's subject matter jurisdiction (i.e., either diversity or federal question jurisdiction), naming as Defendants Derrick Eberhart, Amari Perez, Anthony Rodriguez, and Betta Pechuli; Plaintiff provides the same address in Phoenix as the address for all Defendants. (ECF No. 1). Plaintiff has also filed an application seeking leave to proceed in this matter in forma pauperis. (ECF No. 2). Plaintiff has consented to the exercise of magistrate judge jurisdiction over this matter (ECF No. 7); no Defendant has been served nor appeared.
Plaintiff filed five complaints and motions to proceed in forma pauperis in the District of Arizona in 2022, including Sproles v. Peoria Police Department, 2:22-cv-00336-DJH (naming Eberhart and others as defendants and dismissed for failure to file an amended complaint within the time allowed by the court); Sproles v. Arizona Department of Child Safety, 2:22-cv-00364-DWL (naming as defendants Department of Child Safety (“DCS”) case workers, a state judge, and Eberhart, and dismissed for failure to file an amended complaint within the time allowed by the court); Sproles v. Department of Child Safety, 2:22-cv-01428-DWL (naming as defendants DCS employees and dismissed without leave to amend for want of subject matter jurisdiction); and Sproles v. Arizona Department of Child Safety, 2:22-cv-01496-MTM (dismissed without leave to amend the complaint inter alia because the suit was a belated attempt to amend the complaints in the prior actions and finding Plaintiff failed establish a jurisdictional basis for her claims). Additionally, under the name Aneta Eberhart Sproles, Plaintiff filed Sproles v. Gonzalez, 2:22-cv-01313-ESW, naming as defendants Eberhart, the Peoria Police Department, the Phoenix Police Department, and two hotels. The case was dismissed for failure to state a claim over which the court had jurisdiction.
Because Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), the Complaint is subject to sua sponte review and the Complaint is also subject to mandatory dismissal if it is “frivolous, malicious,” or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). Section 1915(e) “not only permits, but requires, a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Because upon screening it appears the Court is without jurisdiction to hear Plaintiff's 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), Rule 72.2(a)(2), Local Rules of Civil Procedure, and General Order 21-25.
Screening under § 1915(e)(2) is performed under the same standard of review as Federal Rule of Civil Procedure 12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint that fails to allege a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a plausible claim for relief. See UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013). The Court must liberally construe a pro se plaintiff's pleadings. E.g., Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
To be allowed to proceed on a complaint, the plaintiff must establish the Court's jurisdiction over their claim(s). A plaintiff may establish the Court's subject matter jurisdiction in one of two ways. First, the plaintiff may assert that the defendant violated the Constitution or a federal law, establishing the Court's “federal question” jurisdiction. See 28 U.S.C. § 1331. Alternatively, a plaintiff may invoke the Court's “diversity” jurisdiction, which applies when “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.” 28 U.S.C. § 1332(a)(1).
The instant Complaint names as Defendants Derrick Eberhart, Amari Perez, Anthony Rodrigues, and Betta Pechuli. The same address in Arizona is provided for all Defendants. The statement of the claim is as follows: “All the Defendants listed with Derrick Eberhart conspired to help Derrick cause physical harm to me and cause me severe financial loss and traumatic stress.” (ECF No. 1 at 4). Plaintiff seeks damages in the amount of $200,000 from each Defendant “for pain and suffering and financial loss.” (Id.). The limited statement of the claim in the Complaint appears to assert tort claims against individuals who are all residents of Arizona, claims over which the Court does not have jurisdiction based on the diversity of the parties. Plaintiff does not allege a violation of a federal law or the United States Constitution. Accordingly, the Complaint does not state sufficient facts from which the Court can ascertain there is a cause of action over which the Court has subject matter jurisdiction.
Plaintiff has a history of seeking to proceed in forma pauperis in the District of Arizona on complaints which do not adequately state a claim for relief and do not assert a basis for federal court jurisdiction. See supra n.1. In April of 2022, the Court screened a complaint similar to a 2020 case brought by Plaintiff, Sproles v. Wade, 2:20-cv-02027-CDB, and dismissed the complaint due to Plaintiff's failure to establish a basis for jurisdiction and failure to conform with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. See Stanberry-Sproles v. Arizona Department of Child Safety, 2:22-cv-00364-DWL In a five-page order in 2:22-cv-00364 the court explained the deficiencies of the complaint in detail and provided Plaintiff specific guidance regarding how to correct the deficiencies. Id. at ECF No. 4. Plaintiff was given leave to amend her complaint, but she failed to do so, resulting in the termination of the action. In August of 2022, another complaint was screened and dismissed without leave to amend upon a finding that Plaintiff could not cure the jurisdictional deficiencies. See Stanberry-Sproles v. Department of Child Safety, 2:22-cv-01428-DWL. And in Stanberry-Sprole v. Arizona Department of Child Safety, 2:22-cv-01496-MTM, Plaintiff's complaint was also dismissed without leave to amend.
Additionally, a complaint very similar to the one herein was dismissed without prejudice in Eberhart Sproles v. Gonzalez, 2:22-cv-01313-ESW, for Plaintiff's failure to state a claim over which the court had jurisdiction. The First Amended Complaint at ECF No. 12 in 2:22-cv-01313 stated only: “Derrick Eberhart w/ the other Defendants beat me, stole my property and sold it, made false police reports to have me falsely arrested and later evicted, made several attempts on my life, stole money to bully me.” Plaintiff's instant Complaint may be an attempt to amend the complaint in 2:22-cv-01313, and yet she still fails to adequately state a claim for relief.
“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (internal quotation marks and citation omitted). Under the circumstances, i.e., Plaintiff's earlier actions were dismissed for failure to establish a basis for federal court jurisdiction and she reasserted the claims in a new action months later without establishing a legitimate basis for the Court to exercise jurisdiction, it is clear that Plaintiff cannot cure the deficiencies of the Complaint by amendment. In some previously-filed cases wherein Plaintiff was given leave to amend her complaint to properly state a cause of action and a basis for federal court jurisdiction, she failed to even attempt to amend her complaint. Granting leave to amend the instant Complaint would be futile. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming dismissal with prejudice where district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim with leave to amend); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“The district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint).
Accordingly, IT IS RECOMMENDED that Plaintiff's Complaint at ECF No. 1 be dismissed without leave to amend.
IT IS FURTHER RECOMMENDED that Plaintiff's motion at ECF No. 2 be denied as moot.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.