Opinion
CV-24-00315-TUC-JGZ
07-24-2024
Andy Gonzalez, Plaintiff, v. David Chase, et al., Defendants.
ORDER
Jennifer G. Zipps United States District Judge
On June 25, 2024, Plaintiff Andy Gonzalez filed a pro se First Amended Complaint alleging violations of his Sixth Amendment rights under the U.S. Constitution. (Doc. 7 at 4.) Plaintiff has been granted in Forma Pauperis status. (Doc. 6.) Upon screening, the Court will dismiss Plaintiff's First Amended Complaint (Doc. 7) with leave to amend.
I. Statutory Screening of IFP Complaint
In reviewing an in forma pauperis complaint, the Court must dismiss the case if the court determines that the complaint “fails to state a claim on which relief may be granted.” 28 U.S.C. 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). District Court screening orders apply the same standard as applied to a Rule 12(b)(6) motion to dismiss. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Thus, the 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)(2). “[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 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. The complaint must contain more than “a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. If the 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, 203 F.3d at 1127-29 (9th Cir. 2000).
II. First Amended Complaint
In Plaintiff's First Amended Complaint, he alleges he was the victim of an “il[l]egal search and lie to the Grand Jury” in violation of his Sixth Amendment rights. (Doc. 7). He names as Defendants a Mammoth police officer and a school custodian in Mammoth. Plaintiff also filed separately an exhibit containing additional facts and 78 non-sequential pages of a transcript of a previous court hearing. (Doc. 8.) In the exhibit, the Plaintiff alleges that the Mammoth police officer conducted an illegal search and lied to a grand jury when he claimed that the Plaintiff “hit him with the bottom frame of [his] car frame door.” (Id. at 1.)
The First Amended Complaint fails to state a claim. The Sixth Amendment reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.U.S. CONST. AMEND. VI. Plaintiff's allegations do not implicate any provision of the Sixth Amendment. Moreover, Plaintiff fails to allege any facts about an illegal search-when or where it occurred or what any specific Defendant did that was unconstitutional. Plaintiff fails to allege any conduct by the school custodian and therefore fails to tie conduct by the custodian to a violation of Plaintiff's constitutional rights. Plaintiff does not cite to any part of the transcript to support his allegation that the police officer lied. Finally, reviewing the transcript, it appears that Plaintiff's claims may have already been litigated in state court, in which case they may be barred. Plaintiff fails to explain if he was charged with an offense, whether the officer testified against him, and how or whether any charges were resolved.
Rule 8, Federal Rules of Civil Procedure, requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Plaintiff's complaint fails to include facts sufficient to state a claim and therefore will be dismissed.
II. Leave to Amend
The Court finds that dismissal with leave to amend is appropriate. 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 Court has provided the reasons for the dismissal to permit Plaintiff to make an intelligent decision whether to file an Amended Complaint. See Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962). Furthermore, Plaintiff is advised that all causes of action alleged in the original Complaint which are not alleged in any Amended Complaint will be waived. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (“an amended pleading supersedes the original”). Plaintiff is advised that he must include all of his allegations in an amended complaint. The Court will not look through attached transcripts or other exhibits to guess at the facts that might underlie Plaintiff's claims.
Any Amended Complaint filed by Plaintiff 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 the face of the document and formatted in compliance with L.R.Civ 7.1. Plaintiff is advised that if an Amended Complaint fails to state a claim upon which relief can be granted, the Court will
likely dismiss this action. Additionally, Plaintiff is advised that if he fails to timely comply with every provision of this Order, this action will be dismissed pursuant to 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 any order of the Court).
Accordingly, IT IS ORDERED:
(1) Plaintiff's First Amended Complaint (Doc. 7) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.
(2) If Plaintiff fails to file a second amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice and deny any pending unrelated motions as moot.