Opinion
CV-22-00458-TUC-DTF
10-07-2022
Elkino Denardo Dawkins, Sr., Plaintiff, v. Department of Economic Security, Defendant.
ORDER
HONORABLE D. THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE
Plaintiff seeks to proceed in forma pauperis, without prepayment of fees or costs, and submitted an application (Doc. 2) in accordance with 28 U.S.C. § 1915 and Local Civil Rule 3.3. The Court finds good cause for granting Plaintiff's application. For the reasons set forth below, the Court will enter an order dismissing the Complaint with leave to amend.
Authority of Magistrate Judge
This matter has been assigned to the undersigned magistrate judge pending consent or election of a district judge by the parties. (Doc. 3.) Consent of all parties has not yet been obtained. In fact, Defendant has not yet been served. Although a magistrate judge lacks jurisdiction to enter a dispositive decision absent consent from all named parties, Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017), dismissal with leave to amend is not dispositive, McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Consequently, the undersigned may enter such through an order. Id. at 797 ("While the magistrate can dismiss complaints with leave to amend, the district court necessarily must review that decision before dismissing the entire action.").
Complaint
Plaintiff filed a pro se complaint. (Doc. 1.) Plaintiff brings a claim against Defendant alleging violation of "Discrimination" laws. Id. at 3. The entire factual allegation is as follows: "I was denied a renewal of food stamps at the office, because my oddjob employer didn't want to comply with the office inquiry." Id. at 4. The Court interprets this as a claim under 42 U.S.C. § 1983.
The writing is not completely legible. This may say "old" instead of "odd."
It is possible that Plaintiff intends to allege a specific discrimination claim, such as race, sex, disability. It is unclear from the limited allegations. Perhaps more facts would aid the Court in this determination.
Statutory Screening of Complaint
Where plaintiffs proceed in forma pauperis, courts must dismiss any claim that "is frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." § 1915(e)(2)(B). While courts must "construe pro se filings liberally," Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), courts will not act as their counsel or paralegal. Pliler v. Ford, 542 U.S. 225, 232 (2004).
A complaint must be dismissed if "it lacks an arguable basis either in law or in fact." Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). To survive a screening, plaintiffs must allege "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Byrd v. Phx. Police Dep't, 885 F.3d 639, 642 (9th Cir. 2018); see also Johnson v. City of Shelby, 574 U.S. 10, 12 (2014). A complaint must have sufficient factual content such that a court can draw the "reasonable inference" that the defendant is liable for the alleged misconduct, providing "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts should provide leave to amend "unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Cato, 70 F.3d at 1106.
"To state a claim under § 1983, a plaintiff [1] must allege the violation of a right secured by the Constitution and laws of the United States, and [2] must show that the alleged deprivation was committed by a person acting under color of state law" Naffe v. Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015). Entities may not be vicariously liable under § 1983. Id. at 1035 n.1. Moreover, "[s]tates or governmental entities that are considered 'arms of the State' for Eleventh Amendment purposes are not 'persons' under § 1983." Cornel v. Hawaii, 37 F.4th 527, 531 (9th Cir. 2022).
Here, Plaintiff brings action against the Arizona Department of Economic Security. (Doc. 1.) He alleges he was denied renewal of food stamps after an employer did not comply with the inquiry. Id. at 4. As "arms of the State," the Arizona Department of Economic Security are not "persons" under § 1983. Johnson v. Maricopa Cnty. Sheriffs Dep't, No. CV2100520PHXSRBMTM, 2021 WL 5917330, at *2 (D. Ariz. Oct. 12, 2021). Further, Plaintiff does not allege a violation of a right secured by the Constitution or the laws of the United States. For both reasons, any § 1983 claim fails.
To the extent Plaintiff attempted to allege discrimination, it is unclear what the basis of the discrimination is alleged to be. Plaintiff provides no facts relating to alleged basis of discrimination. It is mentioned in the jurisdiction section. (Doc. 1 at 3.) Thus, any discrimination claim must be dismissed. The Court will dismiss the complaint with leave to amend.
Leave to Amend
Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Court suggests Plaintiff review the Court's informational Handbook for Self-Represented Litigants, https://www.azd.uscourts.gov/handbook-self-represented-litigants, before submitting a first amended complaint.
Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The First Amended Complaint must be retyped or rewritten in its entirety and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
The First Amended Complaint will supersede the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat the original Complaint as nonexistent. Id. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in the First Amended Complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012).
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis (Doc 2) is granted.
IT IS FURTHER ORDERED that Plaintiff's Complaint is dismissed with leave to amend. Plaintiff may file a First Amended Complaint within 30 days of this Order. If Plaintiff does not file a First Amended Complaint curing the Complaint's deficiencies, the undersigned United States Magistrate Judge will issue a Report and Recommendation recommending that the Complaint be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2). Failure of Plaintiff to timely comply with Orders of this Court may result in the dismissal of Plaintiff's Complaint without prejudice by the District Judge pursuant to Rules 12(b)(1), (6), (h)(3), 41, Fed. R. Civ. P.; 28 U.S.C. § 1915(e)(2)(B)(iii); and/or pursuant to the Court's inherent power. Ferdik, 963 F.2d at 1260 (stating trial courts have inherent power to control their docket and, in exercise of that power, may impose sanctions including, where appropriate, dismissal of case).