Opinion
CV-22-0369-PHX-JFM
03-14-2022
Francisco Guzman, Plaintiff v. Shawn Blick, M.D., et al., Defendants.
REPORT & RECOMMENDATION ON SCREENING OF IFP COMPLAINT
James F. Metcalf United States Magistrate Judge
TO THE HONORABLE STEPHEN M. McNAMEE : This matter has been assigned to the undersigned magistrate judge while awaiting consents to magistrate judge jurisdiction. None of the parties have yet consented, and accordingly the undersigned proceeds pursuant to 28 U.S.C. § 636(b)(1)(B). See LRCiv 3.7(b). Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation, and pursuant to General Order 21-25 to Senior United States District Judge McNamee.
A. SCREENING OF COMPLAINT
In cases filed by persons appearing in forma pauperis the court is required by 28 U.S.C. § 1915(e)(2) to dismiss cases that are frivolous, malicious, fail to adequately state a claim, or seek monetary relief from a defendant who is immune.
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. Rather, “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 plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Iqbal, 556 U.S. at 678. In making this analysis, reasonable inferences can be drawn from the facts. “Iqbal demands more of plaintiffs than bare notice pleading, but it does not require us to flyspeck complaints looking for any gap in the facts.” Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012).
Still, as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘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)).
B. THE COMPLAINT
Utilizing a form for a non-prisoner civil rights complaint, Plaintiff has filed his Complaint (Doc. 1) and an Application to Proceed In Forma Pauperis which is now granted. Plaintiff named as Defendants: (1) Shawn Blick, M.D., (2) Congressman Ruben Gallego (“Congresist Ruben Gallegos”); (3) Governor Ducey (“Gobernabor Cuzy”), (4) Google (“Gugo”); (5) YouTube; (6) Arizona Attorney General; and (7) Cristo Agra. Beyond the form utilized, Plaintiff does not identify the nature of his claims. Nor does he identify the relief he seeks.
Plaintiff alleges that Blick, a urologist, performed three surgeries on him, the first on April 24, 2013. Other doctors have told Plaintiff at least one was performed negligently, resulting in an infection and inflammation. Plaintiff complained to the Arizona Medical Board, and attaches a copy of their letter dismissing his complaint, and an appeal of that decision directed to the Board's Executive Director. Plaintiff's work with various companies has been interrupted by illness.
Dissatisfied with the medical services, Plaintiff contacted the law office of Defendant Agra. There was a lack of communication with Agra and the case did not proceed. Plaintiff then complained to the Bar, who investigated and reported that Agra asserted he had not been retained, and was only providing a consultation. (He attaches (Doc. 1-1 at 4) a letter from the State Bar of Arizona about Agra.) Plaintiff contends there was a retainer agreement signed by Agra, but Agra refused to provide Plaintiff a copy. Plaintiff has not been able to retain counsel. Plaintiff attaches a letter from Agra withdrawing from further representation, and an authorization to release medical records to Agra.
Plaintiff has been accused of crimes by people in the parks where he lives, and the police have followed him, but when confronted the police won't tell him anything. Plaintiff complained to the Office of Civil Rights, and Defendant Attorney General, but they provided no assistance. Instead, they have defamed Plaintiff, violated his privacy, and denied him any assistance.
Defendant Gallego has violated Plaintiff's medical privacy and defamed him to the attorneys. Gallego has Plaintiff's phone number, and tells the attorneys not to help Plaintiff. Afraid, the attorneys refuse to help Plaintiff. Defendant Gallego has sent Plaintiff's photo to various businesses and clinics.
Plaintiff has a few criminal convictions, and attempted to have them removed from his record, but was told nothing appeared on his record. Nonetheless, he has received phone calls telling him he will be jailed as a sexual criminal. He takes photos on the streets of girls (“chamacas”), women, and men. He has sent letters and packages to his daughters in his country, but they have not arrived because they were stopped in the mail.
Plaintiff claims to have been discriminated against “by the handlers and maintenance.”
C. ANALYSIS OF CLAIMS
1. Parties Without Claims
Plaintiff alleges no facts or claims regarding Defendants: (3) Governor Ducey (“Gobernabor Cuzy”), (4) Google (“Gugo”); or (5) YouTube. Accordingly, these defendants must be dismissed.
2. Claims Without Parties
Plaintiff alleges threats of being improperly jailed as a sexual criminal, interference with his delivery of mail to a foreign country, and being discriminated against. But Plaintiff fails to connect any of these actions to any of his named defendants. Accordingly, even if these allegations stated claims, they must be dismissed.
3. Defendant Blick
Plaintiff arguably asserts a state law claim for professional malpractice against Defendant Blick (1). “In medical malpractice actions, as in all negligence actions, the plaintiff must prove the existence of a duty, a breach of that duty, causation, and damages.” Seisinger v. Siebel, 220 Ariz. 85, 94, 203 P.3d 483, 492 (2009). The relevant duty is the “standard of care” which is that “ordinarily possessed and exercised by other physicians of the same class in the community.” Id. In addition, as a substantive element, evidence of the breach of the standard of care must be established by expert testimony. Id. at 96, 203 P.3d at 494. Here, Plaintiff alleges a breach of the standard of care, purportedly supported by the opinions of other physicians, causing injuries of infection and inflammation.
For both the claims against Blick and Agra, Plaintiff fails to provide the certification required by Ariz. Rev. Stat. § 12-2602 for claims of malpractice. Because the law on the applicability of this requirement in federal court is not clear, the undersigned does not rely on such failure to find the claims inadequately stated. Compare Kaufman v. Jesser, 884 F.Supp.2d 943, 954 (D. Ariz. 2012) (§ 12-2602 is substantive and applied in diversity action) with Bard Water Dist. v. James Davey & Assocs., Inc., 671 Fed.Appx. 506 (9th Cir. 2016) (California requirement for certificate of merit not applied as state procedural law).
4. Defendant Gallego
Plaintiff arguably asserts a state law claim of tortious interference with a business expectancy against Defendant Gallego (2), based on allegations that Gallego has interfered in Plaintiff's attempts to retain counsel. See Dube v. Likins, 216 Ariz. 406, 412, 167 P.3d 93, 99 (Ct. App. 2007) (elements of claim are: “(1) the existence of a valid business expectancy; (2) the interferer's knowledge of the business expectancy; (3) the interferer intentionally induced or caused termination of the business expectancy; and (4) damage suffered as a result of termination of the business expectancy”). While there appear to be no facts to explain the connection between the Congressman and Plaintiff, the undersigned assumes arguendo that the claims are, on their face, plausible.
Plaintiff alleges defamation by Gallego. “To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation.” Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). Plaintiff fails to identify any false statements by Gallego, or to show how such statement was defamatory.
He also alleges an invasion of privacy by Gallego. Arizona's invasion of privacy law requires: (1) an intentional intrusion; (2) an objectively reasonable expectation of privacy; (3) that would be highly offensive to a reasonable person. Hart v. Seven Resorts Inc., 190 Ariz. 272, 947 P.2d 846 (Ct. App. 1997). Plaintiff offers no facts to show such an expectation of privacy or that the invasion would be highly offensive to a reasonable person.
5. Defendant Arizona Attorney General
Plaintiff fails to adequately state a claim against the Arizona Attorney General. At best, he contends that the Attorney General failed to act on a civil rights complaint. But Plaintiff fails to allege any facts to show that the civil rights complaint was meritorious, that the Attorney General had an obligation to act upon it or otherwise violated law in failing to act, or that Plaintiff suffered injury as a result. Plaintiff provides no facts at all to support his conclusory claims of defamation and privacy violations.
6. Defendant Agra
A legal malpractice plaintiff must establish: “(1) the existence of an attorney-client relationship which imposes a duty on the attorney to exercise that degree of skill, care, and knowledge commonly exercised by members of the profession; (2) breach of that duty; (3) that such negligence was a proximate cause of resulting injury; and (4) the fact and extent of the injury.” Ondrejko v. Kniss, No. 1 CA-CV 07-0613, 2008 WL 3906799, at *4 (Ariz.Ct.App. Aug. 21, 2008). Plaintiff alleges an attorney-client relationship, a breach of duty by failing to prosecute Plaintiff's claim, resulting loss of his claim against Blick. Plaintiff at least arguably adequately asserts a state law professional malpractice claim against Defendant Agra.
7. Lack of Jurisdiction
Federal courts are courts of limited jurisdiction, which generally extends only to: (1) federal questions, i.e. the enforcement of rights under federal law, 28 U.S.C. § 1331; or (2) diversity actions, 28 U.S.C. § 1332.
The well-pleaded complaint rule provides that a “‘case aris[es] under federal law within the meaning of § 1331 . . . if a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'” Cook Inlet Region, Inc. v. Rude, 690 F.3d 1127, 1130 (9th Cir. 2012). Based on the foregoing analysis of the Complaint, all of the arguably adequately stated claims arise under state law, and pose no substantial question of federal law.
Thus, jurisdiction over the claims in the Complaint could only be based on diversity. Generally, jurisdiction exists pursuant to 28 U.S.C. § 1332 only where each Plaintiff is a citizen of a different state from each defendant. See In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008) (“Diversity jurisdiction requires complete diversity between the parties-each defendant must be a citizen of a different state from each plaintiff.”). Here, Plaintiff's complaint offers nothing to show that he and Defendants Blick, Gallego, and Agra are citizens of different states.
Congressman Gallego is necessarily a resident of the State of Arizona, which he represents. The addresses for Defendants Blick and Agra identified in the Complaint and its attachments are both in Phoenix, Arizona.
Plaintiff does not identify his citizenship. Plaintiff's Complaint lists his address as Avondale, Arizona. Plaintiff also references mail to “my country.” Section 1332 expressly provides that diversity jurisdiction does not extend to “an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.” 28 U.S.C. § 1332(a)(3). It appears Plaintiff is at least domiciled in Arizona.
With Arizona citizens on both sides, there is no diversity to allow jurisdiction under § 1332.
D. CONCLUSION
Plaintiff does not adequately state any claim raising a federal question. Plaintiff arguably adequately makes out claims under state law against Defendants Blick, Gallego, and Agra. However, Plaintiff fails to show the complete diversity necessary for this Court to exercise jurisdiction over such claims. Accordingly, the Complaint should be dismissed under 28 U.S.C. § 1915(e). Because it is not absolutely clear from the face of the complaint that the deficiencies - particularly with the attempts at federal question claims -- could not be cured by amendment, plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies. See Rodriguez v. Steck, 795 F.3d 1187 (9th Cir. 2015).
E. EFFECT OF 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), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. However, pursuant to Rule 72, 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. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 114647 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
IT IS THEREFORE RECOMMENDED:
(A) Plaintiff's Complaint (Doc. 1) be DISMISSED WITHOUT PREJUDICE.
(B) Plaintiff be given 21 days from the filing of the Court's order to file an amended complaint.
(C) If Plaintiff fails to timely file such amended complaint, that this action be dismissed.