Opinion
CV 23-00202 PHX CDB
02-16-2023
Tyrone C. Glasco, Sr., Plaintiff, v. Joseph R. Biden, Barack Obama, Kamala Harris, Stuart Delery, Defendants.
HONORABLE STEPHEN M. McNAMEE, J.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Plaintiff, who is pro se in this matter, docketed the Complaint (ECF No. 1) and a motion to proceed in this matter in forma pauperis (ECF No. 2) on January 31, 2023. Defendants have not been served nor appeared.
Plaintiff's motion for leave to proceed in forma pauperis avers Plaintiff, who is 49 years of age and completed twelve years of schooling, is unemployed, lives on $230 per month in public assistance, and has no assets. (ECF No. 2).
Plaintiff names as Defendants Joseph Biden, Barack Obama, Kamala Harris, and Stuart Delery (currently White House Counsel). (ECF No. 1 at 2). Plaintiff, a resident of Arizona, and presumably as the principal of a corporation (“T&K”), asserts the Court has jurisdiction over his claims pursuant to the diversity of the parties and because his claims present a question of federal law. (ECF No. 1 at 4). Plaintiff seeks $1 million to $2 million in damages, based solely on the following allegations:
Interferred with a start-up company between myself, Business manager, and friend; Exposing Business meetings minutes public, May 5, 2022. Also giving the public Bindlook[?] into owner contracts and other legal document concerning individual of company.
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Violates my 14 Amendment civil rights: By ing me into unclean environment, unhealth [sic] condition; along with unethical standards.(ECF No. 1 at 4-5). In his claim for relief Plaintiff seeks: “Lost of profits due to other competing individual were able to listen in Close Business meetings. Being order into unethical”. (ECF No. 1 at 5).
Because Plaintiff seeks leave to proceed without prepayment of costs or fees, the Court is required to review Plaintiff's complaint and to dismiss it if the allegations are frivolous, malicious, fail to state a claim on which relief may be granted, or if Plaintiff “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). See also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 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 Atlantic 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). Although the Court must accept as true allegations of material fact, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Wood v. Moss, 572 U.S. 744, 755 n.5 (2014). Conclusory statements, “unadorned, the-defendant-unlawfully-harmed-me accusation[s],” and factual allegations that only permit the Court to infer the “possibility of misconduct” fall short of meeting the plausibility standard. Iqbal, 556 U.S. at 678-79. See also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). And 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).
... Section 1915(d) 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 ... To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, . [such as] claims against . defendants [who] are immune from suit, [], and claims of infringement of a legal interest which clearly does not exist . . .Nietzke v. Williams, 490 U.S. 319, 327 (1989) (internal citation omitted).
There are insufficient factual allegations in the Complaint that identify a basis for Plaintiff's claim for monetary damages. It is the duty of Plaintiff to articulate his claim and the legal theory under which his claim is brought, and neither the Court nor the Defendants are required to try to decipher what claim(s) Plaintiff is asserting. Because one of the primary functions of a complaint is to provide the defendants with notice of the legal claims asserted against them and the factual basis for those claims, a complaint written without clarity and specificity as to who is being sued and for what, “fails to perform the essential functions of a complaint.” McHenry v. Renne, 84 F.3d 1172, 117880 (9th Cir. 1996).
Because the Complaint does not properly state a claim for relief over which the Arizona District Court has jurisdiction, regardless of whether Plaintiff has met the standard for proceeding in forma pauperis, the Court is within its discretion to dismiss the Complaint without prejudice. See O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990); Bennett v. People of the State of Calif., 406 F.2d 36, 39 (9th Cir. 1969); Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998). However, it is well-established that a pro se litigant must be given leave to amend their complaint unless it is clear that the deficiencies of the complaint cannot be cured by amendment. See, e.g., Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). It is not absolutely clear that Plaintiff will be unable to cure the deficiencies of the Complaint by amendment.
Accordingly, upon screening pursuant to 28 U.S.C. §1915(e)(2), IT IS RECOMMENDED that the Complaint (ECF No. 1) dismissed without prejudice, and the motion at ECF No. 2 be denied without prejudice.
IT IS FURTHER RECOMMENDED that Plaintiff be granted leave to file a First Amended Complaint in accordance with this Report and Recommendation no later than thirty days from the date Judge McNamee rules on the Report and Recommendation. Plaintiff may again seek leave to proceed in forma pauperis if he files a First Amended Complaint.
IT IS FURTHER RECOMMENDED that, if Plaintiff elects to file a First Amended Complaint, the First Amended Complaint shall not be served until and unless the Court screens it pursuant to 18 U.S.C. § 1915(e)(2).
IT IS FINALLY RECOMMENDED that Judge McNamee order the Clerk of Court to enter judgment dismissing this action without further notice to Plaintiff or further order if Plaintiff elects not to file a First Amended Complaint within thirty days of Judge McNamee's ruling on this Report and Recommendation.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).