Opinion
CV-24-00300-TUC-JCH
07-31-2024
Andy Gonzalez, Plaintiff, v. Tucson City Court, et al., Defendants.
ORDER
JOHN C. HINDERAKER UNITED STATES DISTRICT JUDGE
On June 14, 2024, pro se Plaintiff Gonzalez filed a civil Complaint naming as defendants the Tucson City Court, the Tucson Police Department, the Department of Economic Security, and several individuals including Benabidaz and De la Cruz. See Doc. 1 at 1-4. In his Complaint, Plaintiff asserted only that Defendants Benabidaz and De la Cruz "have all my assets my moneys to make the attorneys and Court fees." Doc. 1 at 4. He further stated that he "need[s] to survive[] and make a living like everybody else, thank you." Id. Plaintiff also filed an Application to Proceed In District Court Without Prepaying Fees or Costs. Doc. 2. His Application to Proceed contained several inconsistencies. For example, Plaintiff stated that he had received only $35.60 per month in retirement income in the past 12 months, yet also reported expenses of $2,100 per month. See Doc. 2.
On July 3, the Court denied Plaintiff's Application to Proceed and dismissed his Complaint without prejudice. Doc. 5. The Court explained why Plaintiffs Application was "facially implausible," and why Plaintiffs Complaint "failed to state any specific facts showing his entitlement to relief against Defendants Benabidaz and De la Cruz" or "any conduct by Defendants State of Arizona, the Arizona Department of Economic Security, Tucson City Court, Tucson Police Department, or Felix." Id. at 3. The Court gave Plaintiff 30 days to address the issues identified with his Application and his Complaint. See id. at 2-3. The Court further warned Plaintiff that failure to comply with the Court's orders could result in dismissal. See id. at 4.
On July 16, Plaintiff filed a renewed Application to Proceed and an Amended Complaint. See Docs. 6, 7.
I. Renewed Application to Proceed
In his renewed Application to Proceed, Plaintiff's no longer states that he receives retirement income. See Doc. 6 at 2. Instead, Plaintiff states that his only income is an indecipherable quantity of food-stamp public assistance. See id. at 1-2. Plaintiff also states that he pays $1,200 per month in rent, and that his total expenses are $3,000 per month. Id. at 4-5. Plaintiff also states that he has "spent or will be spending" $14,000,000 for expenses and attorneys' fees related to this case. Id. at 5.
The Court again declines to exercise its discretion to grant Plaintiff's Application because the Application is facially implausible. Plaintiff states that he has had no income for the past 12 months and also that he has $3,000 per month in expenses. That is the reason the Court denied his last application. Considering that fact, the Court will not grant Plaintiff leave to file another application. Instead, the Court will give Plaintiff 30 days from the date of this Order to pay the $350.00 filing fee and the $55.00 administrative fee. Failure to pay these fees within 30 days will result in the dismissal of this case without further notice.
II. Statutory Screening of a Pro Se Complaint
A. Legal Standard
Under 28 U.S.C. § 1915(e)(2), notwithstanding the payment of any filing fee, the 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 may be 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 context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe [self-represented litigant's] filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a self-represented litigant] '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 Court determines that a pleading could be cured by the allegation of other facts, a self-represented 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).
B. Analysis
The Amended Complaint again lists Benabidaz and De la Cruz as defendants, as well as Ema Barselo. See Doc. 7 at 2. It does not include any other defendants. See id.
In the section of the complaint form titled "Statement of Claim," Plaintiff writes only the following, quoted verbatim: "Theft of 1309 W El Rio Dr. ID-theft fraud of about [$300,000]." Doc. 7 at 4. In the section titled "Relief," Plaintiff writes only "800,000 + [interest]." Id.
As with the first Complaint, the Amended Complaint does not allege any facts related to Defendants Benabidaz or De la Cruz. The Amended Complaint also alleges no facts related to Defendant Barselo. The Amended Complaint therefore fails to state a claim.
C. 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).
However, Plaintiff is advised to consider the Court's feedback on his first two complaints. If he fails again to comply with the Court's direction, the Court may conclude that further amendment would be futile. See, e.g., Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) ("Leave to amend need not be given if a complaint, as amended, is subject to dismissal."). The Court's discretion to deny leave to amend is particularly broad when a plaintiff has previously been permitted to amend his complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated failure to cure deficiencies is one of the factors to be considered in deciding whether justice requires granting leave to amend. Moore, 885 F.2d at 538.
The Court has now twice provided the reasons for 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). Plaintiff is advised that all causes of action alleged in the original and amended complaints that are not alleged in any second 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"). Any second amended complaint filed by Plaintiff must be retyped or rewritten in its entirety and may not incorporate any part of the original or amended complaints by reference. A second amended complaint must be clearly designated as a Second Amended Complaint on the face of the document and formatted in compliance with L.R.Civ 7.1.
Plaintiff is advised that if a Second Amended Complaint fails to state a claim upon which relief can be granted, the Court likely will 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 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 any order of the Court).
III. Order
Accordingly, IT IS ORDERED DENYING Plaintiff's Application to Proceed (Doc. 6). Plaintiff must pay the $350.00 filing fee and the $55.00 administrative fee within 30 days of the date of this Order. Failure to pay these fees within 30 days will result in the dismissal of this case without further notice.
IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE Plaintiff's Amended Complaint (Doc. 7). Plaintiff may amend his Amended Complaint within 30 days of the date of this Order.