Opinion
CV-24-00352-TUC-JR
07-30-2024
Andy Gonzalez, Plaintiff, v. Bank of America, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau, United States Magistrate Judge
Pro se Plaintiff Andres Gonzales has filed a Complaint (Doc. 1) and an Application to Proceed In District Court without Prepaying Fees and Costs (“Application to Proceed”) (Doc. 2). General Order 21-25 directs this Court to prepare a Report and Recommendation to the appropriate designee in either Tucson or Phoenix/Prescott. Accordingly, this Court directs this Report and Recommendation to United States District Judge Raner C. Collins. As more fully set forth below, this Court recommends that the district court grant the Application to Proceed and dismiss the Complaint.
This Court ordered the Complaint sealed to protect sensitive banking information. (Doc. 5.) Plaintiff was ordered to refile his Complaint with all sensitive information redacted by July 28, 2024. Id. As of the date of this Report and Recommendation, Plaintiff has failed to refile his Complaint.
Application to Proceed In Forma Pauperis
Plaintiff indicates that he has insufficient funds to pay the filing fee for this action. (Doc. 2.) The Court recommends that the district court exercise its discretion and grant Plaintiff's Application to Proceed.
Statutory Screening of In Forma Pauperis Complaints
Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted in forma pauperis status, the district court shall dismiss the case “if the court determines that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief maybe granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
The district court must “construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se individual] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). If the district court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
The Complaint
Plaintiff alleges that the district court has federal question jurisdiction over the claim alleged in his Complaint. (Doc. 1 at 3.) He claims that the amount in controversy is $300,000 stating, “il[l]egal transfers to [a]cct 7696 [f]rom Cecilia Benabidez to Erma Barselo on [f]r[a]ud[.]” (Doc. 1 at 4.) He sues Defendant Bank of America asserting:
[A]ll my R Rail Road (sic) [r]etirement [b]enefit[s] were taken away l[ea]ving me with $0 impossible is about 75 [cents] X [d]ay[.]Id.
In case no. 4:23-cv-161-RCC, Gonzales v. State of Arizona, Plaintiff similarly made an allegation against the State of Arizona that his retirement benefits including his “RR board” were “stolen.” District Judge Collins dismissed Plaintiff's Complaint for failure to state a claim. See Gonzales v. State of Arizona, Case No. 2:23-cv-161-RCC (D. Ariz. Apr. 25, 2023) (Order, Doc. 5).
Discussion
This Court finds that Plaintiff's Complaint fails to state a claim upon which relief may be granted. Plaintiff has failed to allege any facts showing that he is entitled to relief against Defendant Bank of America. Instead, Plaintiff's claim is a conclusory statement lacking factual support. Plaintiff's allegation is vague and conclusory and thus fails to state a claim. Plaintiff does not provide any factual support for his assertion that Defendant Bank of America is liable for his “R Rail Road Retirement” benefits being “taken away.” (Doc. 1 at 4.) It is insufficient for Plaintiff to allege that Defendant Bank of America is liable to him. Rather, Plaintiff is required, under Rule 8 of the Federal Rules of Civil Procedure, to allege specific facts showing that he is entitled to relief against Defendant Bank of America. Because Plaintiff has failed to allege any specific facts showing that he is entitled to relief against Defendant Bank of America, this Court recommends the Complaint be dismissed for failure to state a claim.
Dismissal with leave to amend is recommended. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute as stated in Akhtar v. Mesa, 698 F.3d 1202 (2012) (leave to amend is liberally granted unless absolutely clear deficiencies cannot be cured by amendment). The above mentioned reasons for the recommended dismissal allow Plaintiff to make an intelligent decision regarding whether to file an Amended Complaint. See Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962).
Any Amended Complaint Plaintiff files must be retyped or rewritten in its entirety and may not incorporate any part of the original Complaint by reference. An Amended Complaint must be clearly designated as an Amended Complaint on its face and formatted in compliance with L.R.Civ 7.1. If an Amended Complaint fails to state a claim upon which relief may be granted this action will likely be dismissed. Plaintiff is advised that if he fails to timely comply with every provision of the district court's order, the district court may dismiss this action under Fed.R.Civ.P. 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may dismiss action for failure to comply with court order).
Conclusion
As noted, supra, General Order 21-25 directs this Court to prepare a Report and Recommendation to the appropriate designee in either Tucson or Phoenix/Prescott. Accordingly, the Court directs this Report and Recommendation to the Honorable Raner C. Collins.
For the reasons set forth above, the undersigned Magistrate Judge RECOMMENDS that the District Judge enter an order:
(1) GRANTING Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2); and
(2) DISMISSING Plaintiff's Complaint (Doc. 1) for lack of subject matter jurisdiction and a failure to state a claim.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from Judge Collins.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.
IT IS FURTHER ORDERED that the Clerk of Court refer this matter to the Honorable Raner C. Collins.