Opinion
CV-22-0548-TUC-EJM
12-12-2022
Deyoe R. Harris, Plaintiff, v. Viola Romero and Bernard Greene, Defendants.
REPORT AND RECOMMENDATION
Eric J. Markovich, United States Magistrate Judge.
On December 8, 2022, Plaintiff Deyoe R. Harris filed a pro se Complaint (Doc. 1) alleging that the Defendants were “TERMINATED for failing to PROPERLY IDENTIFY OFFICERS further violating [his] civil rights.” Compl. (Doc. 1) at 1 (emphasis in original). Plaintiff did not immediately pay the $402.00 civil action filing fee but lodged an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 3).
I. APPLICATION TO PROCEED IN FORMA PAUPERIS
The Court may allow a plaintiff to proceed without prepayment of fees when it is shown by affidavit that she “is unable to pay such fees[.]” 28 U.S.C. § 1915(a)(1). Plaintiff's statement, made under penalty of perjury, establishes that Plaintiff is without earned income and no assets. The Court finds Plaintiff is unable to pay the fees. The Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) will be granted.
II. STATUTORY SCREENING OF PLAINTIFF'S COMPLAINT
This Court is required to dismiss a case if the Court determines that the allegation of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that 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.” 28 U.S.C. § 1915(e)(2)(B).
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief[.]” Rule 8(a), Fed.R.Civ.P. 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Where the pleader is pro se, however, the pleading should be liberally construed in the interests of justice. Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Nonetheless, a complaint must set forth a set of facts that serves to put defendants on notice as to the nature and basis of the claim(s). See Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Hebbe, 627 F.3d at 342 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002). “Given the Federal Rules' simplified standard for pleading, ‘[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'” Id. at 514, 122 S.Ct. at 998 (quoting Hison v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)) (alterations in original); see also Johnson, et al. v. City of Shelby, Mississippi, __ U.S. __, 135 S.Ct. 346, 346 (2014) (“Federal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted”).
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 v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court should not, however, advise the litigant how to cure the defects. This type of advice “would undermine district judges' role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies).
III. COMPLAINT-FAILURE TO STATE A CLAIM
Plaintiff's Complaint (Doc. 1) states “As docket entry 13 of the 9th Circuits [sic] 18-15159 (attached) demonstrates clearly, both the Tucson City Attorney's listed above were TERMINATED for failing to PROPERLY IDENTIFY OFFICERS further violating my civil rights.” Compl. (Doc. 1) at 1 (emphasis in original). Plaintiff “want[s] you people to put them in prison and pay me damages in accordance with the law.” Id.
The docket sheet Plaintiff attached to his Complaint is devoid of any allegations of wrongdoing by either of the named Defendants. See Harris v. Univ. of Ariz. Police Dept., et al., No. 18-15159, Docket Sheet (9th Cir.) (last visited Dec. 12, 2022). Furthermore, prison is not a remedy in a civil lawsuit. See Civil Action, Black's Law Dictionary (11th ed. 2019) (“An action brought to enforce, redress, or protect a private or civil right; a noncriminal litigation.”). Based on the foregoing, the Court finds Plaintiff's Complaint (Doc. 1) fails to provide sufficient detail to put defendants on notice as to the nature and basis of his claims. See Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). The Court further finds that there are no possible allegations of fact that will correct Plaintiff's failure. Accordingly, Plaintiff's Complaint (Doc. 1) will be dismissed.
Plaintiff's appeal to the Ninth Circuit “challenge[d] the jury's verdict finding Appellees did not use excessive force during a 2013 stop where Harris was tased, handcuffed, and taken to the hospital.” Harris v. Univ. of Ariz. Police Dept., et al., No. 18-15159, Mem. Decision (9th Cir. Aug. 5, 2020) (affirming jury's verdict in favor of Defendants-Appellees).
IV. CONCLUSION
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 delineated above, the 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) is WITHOUT PREJUDICE.
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 the District Court.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.