Rust v. Tucson, City of et al, No. 4:2009cv00048 - Document 11 (D. Ariz. 2009)
Court Description: ORDER granting 7 Motion for Leave to File; Further ORDERED Plaintiff's 10 Amended Complaint (previously Lodged doc 8) and this action are DISMISSED without prejudice. Clerk directed to enter judgment accordingly and close file in this matter. ***See attached PDF for complete information***. Signed by Magistrate Judge Hector C Estrada on 7/2/09.(CLJ, )
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Rust v. Tucson, City of et al 1 Doc. 11 WO 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT OF ARIZONA 4 Jan C. Rust, 5 Plaintiff, 6 vs. 7 8 City of Tucson; et. al., 9 Defendants. 10 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-48-TUC-HCE ORDER 11 On March 5, 2009, the Court, pursuant to 28 U.S.C. § 1915: (1) granted Plaintiff’s 12 Motion to Proceed In Forma Pauperis; and (2) dismissed the complaint with leave to amend. 13 (Doc. No. 5). Now pending before the Court are Plaintiff’s: (1) “Request to File Amended 14 Complaint Two Days Late” (Doc. No. 7); and (2) Amended Complaint (Doc. No. 8). 15 Plaintiff has consented to the exercise of jurisdiction by the United States Magistrate 16 Judge pursuant to 28 U.S.C. § 636(c). (Doc. No. 6). 17 I. Extension of Time 18 Plaintiff’s two-day delay in filing her Amended Complaint was caused, in part, by 19 computer problems due to a computer virus. Under the instant circumstances, Plaintiff’s 20 request for extension is granted. See Fed.R.Civ.P. 6(b)(1)(B). 21 II. Screening the Amended Complaint 22 When dismissing Plaintiff’s complaint, the Court advised that: “Once Plaintiff files 23 her amended complaint, the Court will screen the amended complaint in light of 28 U.S.C. 24 §1915(e)(2)(B).” (Doc. No. 5, p. 14). Pursuant to the in forma pauperis statute, the court 25 must dismiss any complaint filed in forma pauperis if the court determines that the complaint 26 is frivolous or malicious; fails to state a claim upon which relief can be granted; or seeks 27 monetary relief from an individual who is immune from such relief. 28 U.S.C. 28 Dockets.Justia.com 1 §1915(e)(2)(B)(I)-(iii); see also Franklin v. Murphy, 745 F.2d 1221, 1226-1227 (9th Cir. 2 1984). 3 A. 4 A complaint is to contain: 5 (1) (2) 6 (3) 7 Standard a short and plain statement of the grounds for the court’s jurisdiction...; a short and plain statement of the claim showing the pleader is entitled to relief; and a demand for the relief sought, which may include relief in the alternative or different types of relief. 8 Fed.R.Civ.P. 8(a). While Rule 8 does not demand detailed factual allegations, “it demands 9 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 10 Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009). “Threadbare recitals of the elements of a 11 cause of action, supported by mere conclusory statements, do not suffice.” Id. Moreover, 12 it is a well-settled tenet that a complaint must “‘give the defendant fair notice of what 13 the...claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 14 544, 555 (2007). 15 When deciding whether the plaintiff has stated a claim, the court must construe the 16 complaint in the light most favorable to the plaintiff; accept all well-pleaded factual 17 allegations as true; and determine whether the plaintiff can prove any set of facts to support 18 a claim that would merit relief. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 19 2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). See also 20 SmileCare Dental Group v. Delta Dental Plan of Cal. Inc., 88 F.3d 780, 783 (9th Cir. 1996) 21 (a claim may be dismissed because it lacks “a cognizable legal theory” or because it fails to 22 allege sufficient facts to support a claim). To survive dismissal for failure to state a claim 23 under section 1915(e)(2)(B)(ii), the plaintiff must allege “only enough facts to state a claim 24 to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Ashcroft, __ U.S. 25 __, 129 S.Ct. at 1949 (“a complaint must contain sufficient factual matter, accepted as true, 26 to ‘state a claim to relief that is plausible on its face.’”) (quoting Twombly, 550 U.S. at 570). 27 A claim is plausible on its face “when the plaintiff pleads factual content that allows the court 28 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” -2- 1 Ashcroft, __ U.S. __, 129 S.Ct. at 1949. See also Twombly, 550 U.S. 544, at 555 (“‘[T]he 2 pleading must contain something more...than...a statement of facts that merely creates a 3 suspicion [of] a legally cognizable right of action.’”) (quoting 5 C. Wright & A. Miller, 4 Federal Practice and Procedure §1216, pp. 235-236 (3rd ed. 2004); Williams v. Gerber 5 Products Co., 552 F.3d 934, 938 (9th Cir. 2008)(the factual allegation pled “‘must be enough 6 to raise a right to relief above the speculative level.” ) (quoting Twombly, 550 U.S. at 555). 7 “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than 8 a sheer possibility that a defendant has acted unlawfully....Where a complaint pleads facts 9 that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between 10 possibility and plausibility of ‘entitlement of to relief.’” Ashcroft, __ U.S. __, 129 S.Ct. at 11 1949 (quoting Twombly, 550 U.S. at 556-557). Thus, although a plaintiff’s specific 12 allegations may be consistent with the claim for relief, a court must assess whether there are 13 other “more likely explanations...” for a defendant’s conduct. Id. at __, 129 S.Ct. at 14 1951.“Determining whether a complaint states a plausible claim for relief [is]...a context- 15 specific task that requires the reviewing court to draw on its own judicial experience and 16 common sense.” Ashcroft, __ U.S. __, 129 S.Ct. at 1950. 17 The court is not “‘bound to accept as true a legal conclusion couched as a factual 18 allegation.’” Ashcroft, __ U.S. __, 129 S.Ct. at 1949-1950 (quoting Twombly, 550 U.S. at 19 556); see also Western Mining Council, 643 F.2d at 624 (although the complaint is generally 20 construed favorably to the pleader, the court does not accept as true unreasonable inferences 21 or conclusory legal allegations cast in the form of factual allegations). “Nor does a complaint 22 suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft, 23 __ U.S. __, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557)). Furthermore, the 24 complaint must contain a statement of the claim showing that the plaintiff is entitled to relief 25 “rather than a blanket assertion[] of entitlement to relief.” Twombly, 550 U.S. at 556 n.3. 26 Additionally, a complaint will be dismissed under section 1915(e)(2)(B)(i) as 27 frivolous where there is no arguable basis for relief either in law or fact. Neitzke v. Williams, 28 490 U.S. 319, 325 (1989), superseded on other grounds by 28 U.S.C. §1915. See also -3- 1 Denton v. Hernandez, 504 U.S. 25 (1992). Factual frivolousness includes allegations that 2 are clearly baseless, fanciful, fantastic, or delusional. Denton, 504 U.S. at 32-33 (citing 3 Neitzke, 490 U.S. at 325, 327, 328). Furthermore, complaints “‘that merely repeat[] pending 4 or previously litigated claims’” may be dismissed as frivolous. Cato v. U.S., 70 F.3d 1103, 5 1105 n.2 (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)). Legal 6 frivolousness justifies dismissal under section 1915 where a complaint is based on “an 7 indisputably meritless legal theory...[such as] claims against which it is clear that the 8 defendants are immune from suit, and claims of infringement of a legal interest which clearly 9 does not exist....” Neitzke, 490 U.S. at 327 (internal citation omitted). 10 A complaint is deemed to be malicious if it suggests an intent to vex defendants or 11 abuse the judicial process by relitigating claims decided in prior cases. Crisafi v. Holland, 12 655 F.2d 1305, 1309 (D.C. Cir. 1981); Phillips v. Carey, 638 F.2d 207, 209 (10th Cir. 1981); 13 see also Spencer v. Rhodes, 656 F.Supp. 458, 463 (E.D.N.C. 1987), aff’d, 826 F.2d 1059 (4th 14 Cir. 1987); Sitanggang v. Indymac Bank, 2009 WL 1286484, *6 (E.D. Cal. May 6, 2009). 15 When determining whether an action is malicious, the Court need not look only to the 16 complaint before it, but may also look to the plaintiff’s prior litigious conduct. Cochran v. 17 Morris, 73 F.3d 1310, 1316 (4th Cir. 1996). However, “a complaint filed in forma pauperis 18 is not subject to dismissal simply because the plaintiff is litigious. The number of complaints 19 a poor person files does not alone justify peremptory dismissal. In each instance, the 20 substance of the impoverished person’s claim is the appropriate measure.” Crisafi , 655 F.2d 21 at 1310. 22 When the plaintiff is pro se, the complaint must be liberally construed in the interests 23 of justice. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se pleadings are held to “less 24 stringent standards than formal pleadings drafted by lawyers...”); Johnson v. Reagan, 524 25 F.2d 1123 (9th Cir. 1975) (“Pleadings should be liberally construed in the interests of justice, 26 particularly when a pleader is not learned in the law.”). However, "[p]ro se litigants must 27 follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 28 -4- 1 567 (9th Cir. 1987); see also Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) ("pro se litigants 2 are bound by the rules of procedure."). 3 If the Court determines that a pleading could be cured by the allegation of other facts, 4 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 5 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 6 should not, however, advise the litigant how to cure the defects. This type of advice “would 7 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 8 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was 9 required to inform a litigant of deficiencies). 10 The Court has previously advised Plaintiff that an amended pleading supersedes the 11 original and, thus, all causes of action alleged in the original complaint which are not alleged 12 in any amended complaint are waived. (See Doc. No.5, p. 14 (citing Hal Roach Studios v. 13 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990); King, 814 F.2d 565). 14 15 B. Plaintiffs’ Allegations 1. Introduction 16 Plaintiff has filed her Amended Complaint pursuant to 42 U.S.C. §§ 1983, 1984, and 17 1986. (Doc. No. 8, p. 3). She names the following Defendants: (1) City of Tucson and (2) 18 Southwestern Intervention Services “As Agent for City of Tucson.” (Id. at p.1). 19 Plaintiff alleges that on January 18, 2009, she was arrested “for violating Arizona 20 Revised Statute 13-3601, Domestic Violence and 13-2810 Interfering with a Judicial Order 21 without warrant, summons and/or probable cause.” (Doc. No. 8, p.1) Plaintiff alleges that 22 on December 29, 2008 Tucson Police Department Detectives Cheek and Dowling, without 23 an arrest warrant or summons, attempted to arrest her for “the same charge” at her residence. 24 (Id. at pp. 1-2). Plaintiff alleges that no facts supported the charges against her and, instead, 25 officers relied upon “false statements made by...Michael Chamberlin.” (Id. at p.2) Plaintiff 26 further alleges that the charges were ultimately dismissed for lack of evidence and lack of 27 probable cause. (Id.). 28 Plaintiff also states that she -5- 1 believes based on evidence she has obtained through subpoena and other legitimate disclosure that T[ucson] P[olice] D[epartment] conspired to falsely arrest her because of a conflict she had with her neighbor Tucson Police Department Lt. Edward Schlitz that resulted in her arrest and charge of a felony that was reduced to a misdemeanor on December 29, 2008. Lt. Schlitz had an Order for Injunction Against Harassment issued against Plaintiff and had her arrested for violating it by making false complaints to the police. 2 3 4 5 (Id.) 6 Plaintiff alleges that Lt. Schlitz was “directly involved in the matter...” that resulted 7 in Plaintiff’s arrest although “physical evidence discovered by the reporting officer indicated 8 that Mr. Chamberlin had lied to the Police regarding the Plaintiff.” (Id.). According to 9 Plaintiff, Tucson Police Department did not obtain copies of court orders or other evidence 10 before making the arrest. (Id. at p.3). 11 Plaintiff alleges that she had obtained “an injunction against harassment [sic] Mr. 12 Chamberlin for an assault he plead guilty to committing and was on supervised probation.” 13 (Id.). Plaintiff further alleges that she informed Defendant Southwestern Intervention 14 Services and the Tucson Police Department “regarding Mr. Chamberlin’s harassment of her 15 to no avail.” (Id.) Plaintiff 16 18 believes that evidence will show Tucson Police and Southwestern Western [sic] Intervention Services conspired to intentionally violate Plaintiff’s civil rights, that under the same circumstances the police gave preferential treatment to a police offic [sic] and then retaliated against the Plaintiff by falsely arresting her in order to deter the court from reducing her felony charge. 19 (Id.). Plaintiff also “believes that if not for the fact that she was female she would have been 20 treated differently.” (Id.). 17 21 2. 42 U.S.C. § 1984 22 The United States Code reflects that no such statute exists at this time. See 42 U.S.C. 23 § 1984 (reflecting statute has been “omitted”). Thus, Plaintiff is unable to state a claim 24 pursuant to 28 U.S.C. § 1984. 25 3. 42 U.S.C. § 1986 26 In the March 5, 2009 Order, the Court explained to Plaintiff that a claim can be stated 27 under section 1986 only if the complaint contains a valid claim under 42 U.S.C. § 1985. 28 (Doc. No. 5, p. 9 (citing McCalden v. California Library Assoc., 955 F.2d 1214, 1223 (9th -6- 1 Cir. 1992); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1040 (9th Cir. 1990)). 2 Amended Complaint, Plaintiff asserts that her causes of action are filed pursuant to 42 U.S.C. 3 §§ 1983, 1984, and1986. (Doc. No. 8, p.3) She has not alleged a claim pursuant to 42 4 U.S.C. § 1985. Because Plaintiff has not filed a claim pursuant to section 1985, she is 5 precluded from seeking relief under section 1986. McCalden, 955 F.2d at 1223. Thus, 6 Plaintiff’s section 1986 claim must be dismissed. Id. 7 4. In her 42 U.S.C. § 1983 8 Under section 1983 “[e]very person who, under color of...[state] statute, ordinance, 9 regulation, custom, or usage...[deprives] any citizen of the United States...of any rights, 10 privileges, or immunities secured by the Constitution and laws, shall be liable to the party 11 injured....” 42 U.S.C. § 1983. To state a claim under section 1983, the plaintiff must allege: 12 (1) the violation of a right secured by the Constitution and the laws of the United States; and 13 (2) the alleged deprivation was committed by a person acting under color of state law. 14 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). The plaintiff must 15 show an affirmative link between an injury (the claimed deprivation) and the conduct of the 16 defendant. Rizzo v. Goode, 423 U.S. 362, 371-372 (1976). 17 Plaintiff alleges that Defendants City of Tucson and Southwestern Intervention 18 Services “conspired to and did in fact violate [her] constitutionally guaranteed rights....” 19 (Doc. No. 8, p.3) Plaintiff does not identify the specific rights allegedly violated. Even if 20 the Court were to liberally construe Plaintiff’s allegations to allege arrest without probable 21 cause in violation of the Fourth Amendment1 and a conspiracy regarding same, for the 22 reasons set forth below, Plaintiff fails to state a claim. 23 24 25 26 27 28 1 See e.g., Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986) (recognizing cause of action for a section 1983 claim based on a violation of the Fourth Amendment). -7- 1 A plaintiff may state a civil cause of action under section 1983 for conspiracy to 2 deprive him or her of civil rights without due process of law.2 Cohen v. Norris, 300 F.2d 24 3 (9th Cir. 1962). See also Rundle v. Madigan, 356 F.Supp. 1048 (N.D. Cal., 1982). However, 4 the mere allegation of conspiracy without factual specificity is insufficient to state a claim. 5 Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988). The plaintiff 6 must allege sufficient facts to show an agreement or meeting of the minds to violate the 7 plaintiff’s civil rights. Woodrum v. Woodward County, Okl., 866 F.2d 1121, 1126 (9th Cir. 8 1989); (see also Doc. No. 5, p. 10 (informing Plaintiff of such standard)). 9 Plaintiff’s alleges a conspiracy involving Defendant Southwestern Intervention 10 Services and “Tucson Police...to intentionally violate Plaintiff’s civil rights, that under the 11 same circumstances the police gave preferential treatment to a police offic [sic] and then 12 retaliated against the Plaintiff by falsely arresting her in order to deter the court from 13 reducing her felony charge.” (Doc. No. 8, p.3). A liberal reading of Plaintiff’s Amended 14 Complaint leads to the conclusion that Plaintiff’s reference to “under the same 15 circumstances” means her allegations that she was arrested on January 18, 2009 based upon 16 alleged false statements made by Mr. Chamberlin and without probable cause. Plaintiff’s also 17 alleges that she complained about Mr. Chamberlin to Defendant Southwestern Intervention 18 Services and to the Tucson Police Department to no avail. 19 Although “Rule 8 marks a notable and generous departure from the hyper-technical, 20 code-pleading regime of a prior era,...it does not unlock the doors of discovery for a plaintiff 21 2 22 23 24 25 26 27 28 To violate a plaintiff’s right to due process, the plaintiff must allege that the defendant denied the plaintiff a specific right protected by the federal constitution , without procedures ensuring fairness (procedural due process), or deliberately abused its power without any reasonable justification in aid of any government interest or objection and only to oppress in a way that shocks the conscience. (substantive due process). Sandin v. Connor, 515 U.S. 472, 483-484 (1995); Daniels v. Williams, 474 U.S. 327 (1986). Substantive due process rights are those not otherwise constitutionally protected but which are deeply rooted in this country’s history and tradition and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed....” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks and citation omitted). (See also Doc.No. 5, pp.11-13 (advising Plaintiff of such standard)). -8- 1 armed with nothing more than conclusions.” Ashcroft, __U.S. __, 129 S.Ct. at 1950. 2 Moreover, “[w]hile legal conclusions can provide the framework of a complaint, they must 3 be supported by factual allegations.” Id. Even assuming the truth of Plaintiff’s allegations 4 that she complained about Mr. Chamberlin to Defendant Southwestern Intervention Services 5 and to the Tucson Police Department to no avail, the facts alleged herein do not lead to the 6 inference that there was a meeting of the minds between Defendant Southwestern 7 Intervention Services and the Tucson Police Department to violate Plaintiff’s civil rights. 8 See Id. at __, 129 S.Ct. at 1949 (A claim is plausible “when the plaintiff pleads factual 9 content that allows the court to draw the reasonable inference that the defendant is liable.”). 10 Nor does Plaintiff allege sufficient facts that would, if true, establish a meeting of the minds 11 between Defendant Southwestern Intervention Services and police officers to give 12 preferential treatment to a police officer and/or to allegedly retaliate against Plaintiff by 13 allegedly “falsely arresting...” Plaintiff without probable cause based in part on alleged lies 14 supplied by Mr. Chamberlin. (Id.). See Woodrum, 866 F.2d at 1126 (dismissing conspiracy 15 claim where plaintiffs’ allegations showed that one defendant “deceived the social workers 16 by filing false reports against the [plaintiffs], but that the [plaintiffs] could allege no specific 17 facts to show any agreement between [that defendant] and any of the [other] named 18 defendants.”). Under such circumstances, Plaintiff’s claim against Defendant Southwestern 19 Intervention Services fails. 20 Plaintiff’s claims against Defendant City of Tucson also fail. As explained to Plaintiff 21 in the Court’s previous Order, a municipality may not be held liable under section 1983 22 unless its policy or custom caused the constitutional injury. (Doc. No. 5 at p. 12 (citing 23 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 24 166 (1993); Monell v. Department of Social Services, 436 U.S. 658, 694 (1978)). Thus, a 25 municipality may not be sued solely because an injury was inflicted by one of its employees 26 or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2005); see also 27 Monell, 436 U.S. at 692 (section 1983 does not impose liability vicariously on governing 28 bodies solely on the basis of an employer-employee relationship with a tortfeasor). Rather, -9- 1 the municipality is liable only when the execution of its policy or custom inflicts the 2 constitutional injury. Id.; Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005). 3 A section 1983 claim against a municipal defendant “cannot succeed as a matter of law...” 4 unless the plaintiff: (1) contends that the municipal defendant maintains a policy or custom 5 pertinent to the plaintiff’s alleged injury; and (2) explains how such policy or custom caused 6 the plaintiff’s injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming 7 dismissal of municipal defendant for failure to state a claim). A policy is a deliberate choice 8 to follow a course of action made from among various alternatives by an official or officials 9 responsible for establishing final policy with respect to the subject matter in question. Long, 10 442 F.3d at 1185. Thus, a suit is allowed under section 1983 against local governments 11 where “the action that is alleged to be unconstitutional implements or executes a policy 12 statement, ordinance, regulation, or decision officially adopted and promulgated by that 13 body’s officers.” Monell, 436 U.S. at 690-691. Additionally, a policy can be one of inaction 14 as well. See Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004). A policy of inaction must be 15 more than mere negligence; it must be a conscious or deliberate choice among various 16 alternatives. Id. Moreover, “in addition to official policy, a municipality may be sued for 17 ‘constitutional deprivations visited pursuant to governmental ‘custom’ even though such 18 custom has not received formal approval through the [governmental] body’s official 19 decisionmaking channels.’” Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995) (quoting 20 Monell, 436 U.S. at 690-691 and citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481- 21 482 (1986)). 22 municipalities are held responsible for widespread abuses or practices that cannot be 23 affirmatively attributed to the decisions or ratification of an official policy-maker ‘but are so 24 pervasive as to have the force of law.’” Id. at 715 n.3 (quoting Thompson v. City of Los 25 Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989)). However, “[p]roof of random acts or isolated 26 events is insufficient to establish custom. Id. at 714 (citing Thompson 885 F.2d at 1444 (9th 27 Cir. 1989)). Instead, a plaintiff may prove “‘the existence of a custom or informal policy 28 with evidence of repeated constitutional violations for which the errant municipal officials Allowing “custom as a basis for section 1983 liability ensures that - 10 - 1 were not discharged or reprimanded.’” Id. (quoting Gillette v. Delmore, 979 F.2d 1342, 1348 2 (9th Cir. 1992)). 3 Herein, Plaintiff alleges seemingly unrelated events particularized to her and has not 4 alleged that Defendant City of Tucson’s alleged action and/or inaction of which she 5 complains was the result of any policy or custom. Consequently, Plaintiff has failed to state 6 a claim against Defendant City of Tucson. Dismissal3 7 C. 8 The public record for the District Court for the District of Arizona reflects that 9 Plaintiff, although appearing pro se, is not an inexperienced litigant.4 The Court has 10 previously granted Plaintiff the opportunity to file an amended complaint to state a claim 11 3 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 “A Magistrate Judge may not deny an application to proceed in forma pauperis or issue an Order dismissing a case [under the in forma pauperis statute] without the consent of plaintiff.” Recht v. Templin, 2007 WL 2572210, n.1 (N.D. Cal. Sept. 5, 2007) (citing Tripati v. Rison, 847 F.2d 548 (9th Cir. 1988)); see also LR Civ. 72.2(a)(4), Rules of Practice of the U.S. District Court for the District of Arizona (“Subject to the Constitution and laws of the United States, Magistrate Judges in the District of Arizona shall...[m]ake determinations and enter appropriate orders pursuant to 28 U.S.C. § 1915 with respect to any suit, action, or proceedings in which a request is made to proceed in forma pauperis consistent with federal law except that a Magistrate Judge may not deny a request for in forma pauperis status unless the person requesting such status has expressly consented in writing to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c).”). Consent from defendants who have not been served is unnecessary in this case because unserved defendants are not deemed to be “parties” under 28 U.S.C. § 636(c). Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (magistrate judge had jurisdiction to dismiss action as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties); see also Walters v. Astrue, 2008 WL 618933 * 2 n.6 (N.D. Cal. Mar. 4, 2008) (granting motion to proceed in forma pauperis and dismissing complaint pursuant to 28 U.S.C. § 1915(e)(2) where plaintiff consented to magistrate judge, and noting that consent of unserved defendants was not required under such circumstances); Trujillo v. Tally, 2007 WL 4261928 (D. Idaho Nov. 30, 2007) (“The Court does not need to obtain consent from defendants who have not been served because they are not ‘parties’ under the meaning of 28 U.S.C. § 636(c).”); 12 Wright & A. Miller, Federal Practice and Procedure § 3071.2 (2d. ed.). 4 27 28 See CV 01-431-TUC-ACM; 01-432-TUC-CKJ; CV 01-433-TUC-ACM; CV 02-440TUC-JMR; CV 02-441-TUC-CKJ; CV 03-573-TUC-WDB; CV 03-584-TUC-CKJ; CV 04136-TUC-CKJ; CV 04-652-TUC-DCB; CV 04-653-TUC-DCB; CV 07-022-TUC-DCB. - 11 - 1 upon which relief may be granted. For the reasons set forth above and having afforded 2 Plaintiff the benefit of a liberal construction entitled to pro se litigants, Plaintiff’s Amended 3 Complaint fails to state a claim upon which relief may be granted against the named 4 Defendants. Moreover, on the instant record, further attempts at amendment to state a claim 5 against Defendants herein would be futile. See Lopez, 203 F.3d at 1127; Noll v. Carlson, 809 6 F.2d 1446, 1448 (9th Cir. 1987) (citing Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 7 1980)). 8 Accordingly, 9 IT IS ORDERED that Plaintiff’s “Request to File Amended Complaint Two Days 10 Late” (Doc. No. 7) is GRANTED. 11 IT IS FURTHER ORDERED that Plaintiff’s Amended Complaint (Doc. No. 8) and 12 this action are DISMISSED WITHOUT PREJUDICE. The Clerk of Court is DIRECTED 13 to enter judgment accordingly and to close the file in this matter. 14 DATED this 2nd day of July, 2009. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -
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