Opinion
CV-22-01496-PHX-MTM
10-19-2022
Aneta Stanberry-Sproles, Plaintiff, v. Arizona Department of Child Safety, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge
TO THE HONORABLE STEPHEN M. McNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
This Report and Recommendation is filed under General Order 21-25.
Plaintiff commenced this civil action with a pro se complaint for violation of civil
rights and an application to proceed in District Court without paying fees or costs. Docs. 1, 2. The Court granted the application and directed Plaintiff to “file an amended complaint properly alleging federal subject matter jurisdiction no later than October 7, 2022.” Doc. 5. Plaintiff failed to do so. The Court will recommend the complaint be dismissed without leave to amend and the pending motions be denied as moot.
General Order 21-25 states in relevant part:
When a United States Magistrate Judge to whom a civil action has been assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1) due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf:
Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee.
I. Statutory Screening of In Forma Pauperis Complaints
Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to review complaints brought by all plaintiffs who are proceeding in forma pauperis and must dismiss a complaint, or portion of it, if the plaintiff has raised claims that are legally frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from 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 pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se 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)).
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).
I. Analysis
Plaintiff names as defendants the Department of Child Safety (“DCS”) and Ronic Psychological Services. Doc. 1. Plaintiff alleges her parental rights were terminated illegally due to DCS “corruption,” “falsified] documents,” and “lie[s] under oath.” Doc. 1. On the pro se complaint form, in the “Basis for Jurisdiction” section, Plaintiff failed to identify any basis for jurisdiction. Doc. 1. This Court granted Plaintiff leave to amend her complaint, but she failed to do so. Doc. 5.
This is not the first time Plaintiff filed a complaint challenging the legality of her child custody termination. In April 2022, the Court screened a similar complaint pursuant to 28 U.S.C. § 1915(e)(2) and dismissed the complaint due to Plaintiff's failure to establish a basis for jurisdiction and failure to conform with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Stanberry-Sproles v. Arizona Department of Child Safety et al, 2:22-cv-00364-DWL, Doc. 5. In a five-page order, the Court explained the deficiencies of the complaint in detail and provided specific guidance regarding how to correct them. Id. The Court granted Plaintiff leave to amend her complaint, but she failed to do so, resulting in the termination of the action. See also Stanberry-Sproles v. Peoria Police Department et al, 2:22-cv-00336-DJH, Docs. 5, 7 (complaint dismissed with leave to amend for failure to establish a basis for jurisdiction; action dismissed after Plaintiff failed to file amended complaint). Additionally, in August 2022, this Court screened yet another similar complaint pursuant to 28 U.S.C. § 1915(e)(2) and dismissed the complaint without leave to amend, finding Plaintiff could not cure the jurisdictional deficiencies. Stanberry-Sproles v. Peoria Police Department et al, 2:22-cv-01428-DWL, Doc. 5.
The complaint also named DCS and Ronic Psychological Services as defendants as well as various other parties.
The complaint also named DCS and Ronic Psychological Services as defendants as well as various other parties.
“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (internal quotation marks and citation omitted). Under the circumstances, in which Plaintiff's earlier actions were dismissed for failure to establish a jurisdictional basis and she reasserted the action months later, still failing to establish a jurisdictional basis, it is absolutely clear that Plaintiff cannot cure the deficiencies of the complaint by amendment. In essence, this action is a much-belated amendment of the complaint in the earlier actions, but the same deficiencies remain. Granting leave to amend once more would be futile. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming dismissal with prejudice where district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim with leave to amend); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“The district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.”)
IT IS RECOMMENDED Plaintiff's complaint (doc. 1) be DISMISSED WITHOUT LEAVE TO AMEND.
IT IS FURTHER RECOMMENDED Plaintiff's other pending motions (docs. 8, 10, 12) be DENIED as moot.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.