1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jacquelyn Allen, No. CV-21-01150-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Joe Biden, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s application to proceed in forma pauperis 16 (Doc. 3) and Plaintiff’s original complaint (Doc. 1). The Court now rules. 17 I. Legal Standards 18 A. 28 U.S.C. § 1915(e)(2) Congress provided with respect to in forma pauperis cases that a district court 19 “shall dismiss the case at any time if the court determines” that the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous 20 or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 21 28 U.S.C. ' 1915(e)(2). While much of section 1915 outlines how prisoners can file proceedings in forma pauperis, section 1915(e) applies to all in forma 22 pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“section 1915(e) applies to all in forma 23 pauperis complaints”). “It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that 24 fails to state a claim.” Id. Therefore, this court must dismiss an in forma pauperis complaint if it fails to state a claim or if it is frivolous or malicious. 25 … B. Rule 8, Federal Rules of Civil Procedure 26 A claim must be stated clearly enough to enable a defendant to frame a responsive pleading. A complaint must contain “a short and plain statement 27 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Each averment of a pleading shall be simple, concise, and direct.” Fed. 28 R. Civ. P. 8(e)(1). A complaint having the factual elements of a cause of action present but scattered throughout the complaint and not organized into 1 a “short and plain statement of the claim” may be dismissed for failure to satisfy Rule 8(a). Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th 2 Cir. 1988). 3 Kennedy v. Andrews, 2005 WL 3358205, *2–*3 (D. Ariz. 2005). Litigants are not required 4 to be absolutely destitute to obtain the benefits of the in forma pauperis statute. Escobedo 5 v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). However, “a plaintiff seeking [in forma 6 pauperis] status must allege poverty with some particularity, definiteness and certainty.” 7 Id. 8 When a complaint filed in forma pauperis fails to state a claim or lacks an arguable 9 basis in law “Rule 12(b)(6) and § 1915(d) both counsel dismissal.” Neitzke v. Williams, 10 490 U.S. 319, 328 (1989). The phrase “fails to state a claim on which relief may be granted” 11 of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6). 12 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (holding that a plaintiff “must 13 allege facts, not simply conclusions, that show that an individual was personally involved 14 in [injurious conduct].”). 15 “To prevail on a Bivens claim, a plaintiff must show (1) they were deprived of a 16 right secured by the Constitution, and (2) the defendant acted under color of federal law.” 17 Morgan v. United States, 323 F.3d 776, 780 (9th Cir. 2003). A Bivens claims cannot be 18 brought against a federal employee acting in his or her official capacity. Vaccaro v. Dobre, 19 81 F.3d 854, 857 (9th Cir. 1996). A Bivens suit against a defendant in his official capacity 20 is not allowed because it would be another way of pleading an action against the United 21 States, which is barred by sovereign immunity. Nurse v. United States, 226 F.3d 996, 1004 22 (9th Cir. 2000) (noting that customs agents could be sued in their individual capacity but 23 not in the execution of their official duties); see Solida v. McKelvey, 820 F.3d 1090, 1095 24 (9th Cir. 2016) (“An action against an officer, operating in his or her official capacity as a 25 United States agent, operates as a claim against the United States.”). The Supreme Court 26 has also held that the President of United States is entitled to absolute immunity from 27 Bivens actions. Nixon v. Fitzgerald, 457 U.S. 731, 758 (1982). 28 /// 1 II. Analysis 2 In the present case, Plaintif asserts a Bivens action against two defendants. (Doc. 1 3 at 2–3). The first listed defendant is Joseph Biden, the current President of the United 4 States. (Doc. 1 at 2). President Biden is entitled to absolute immunity from Bivens actions, 5 and thus Plaintiff has failed to state a claim against him. Nixon, 457 U.S. at 758. 6 The second listed defendant in this Bivens action is Steve Rosenbaum, Chief of the 7 Special Litigation Section of the Department of Justice Civil Rights Division. (Doc. 1 at 8 2). The only fact alleged by Plaintiff that could possibly be linked to Mr. Rosenbaum is 9 that Plaintiff “made a complaint with special litigation through civil rights web portal.” 10 (Doc. 1 at 4). However, it is unclear how this is related to the remainder of Plaintiff’s 11 allegations or the elements of a Bivens claim. While Plaintiff asserts that her First and Fifth 12 Amendment rights were violated, she in no way states a plausible claim as to how these 13 rights were violated by Mr. Rosenbaum. (See, e.g., Doc. 1 at 3–5) (“I have been subjected 14 to constant gang stalking/terrorism unnecessary requests by strangers for my ID and 15 personal info and theft of my funds.”). Even if Plaintiff has stated cognizable injuries, she 16 has not tied them to the listed defendants. (See, e.g., Doc. 1 at 5) (“I was assaulted by a 17 nurse [at] Juan Luis ER in August 2019. I was harassed and threatened [at] that ER in 18 August 2020 and left with a badly broken wrist.”). Plaintiff does not need to prove her 19 claim in her initial pleading, but she must bring forth sufficient factual allegations, related 20 to the defendants, to nudge her claim “across the line from conceivable to plausible.” See 21 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff’s failure to mention any 22 action by Mr. Rosenbaum in the complaint does not meet this standard. (Doc. 1). Moreover, 23 a claim arising from submitting a complaint through a Department of Justice website could 24 only relate to Mr. Rosenbaum in his official capacity as a federal employee, not in his 25 individual capacity, and is thus barred. See Vaccaro, 81 F.3d at 857. 26 The Court will allow Plaintiff to amend her complaint, but leave to amend is not 27 encouragement to amend. Any claims submitted to the Court must be non-conclusory and 28 tied to the particular actions of the listed defendants. See Ashcroft v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jacquelyn Allen, No. CV-21-01150-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Joe Biden, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s application to proceed in forma pauperis 16 (Doc. 3) and Plaintiff’s original complaint (Doc. 1). The Court now rules. 17 I. Legal Standards 18 A. 28 U.S.C. § 1915(e)(2) Congress provided with respect to in forma pauperis cases that a district court 19 “shall dismiss the case at any time if the court determines” that the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous 20 or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 21 28 U.S.C. ' 1915(e)(2). While much of section 1915 outlines how prisoners can file proceedings in forma pauperis, section 1915(e) applies to all in forma 22 pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“section 1915(e) applies to all in forma 23 pauperis complaints”). “It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that 24 fails to state a claim.” Id. Therefore, this court must dismiss an in forma pauperis complaint if it fails to state a claim or if it is frivolous or malicious. 25 … B. Rule 8, Federal Rules of Civil Procedure 26 A claim must be stated clearly enough to enable a defendant to frame a responsive pleading. A complaint must contain “a short and plain statement 27 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Each averment of a pleading shall be simple, concise, and direct.” Fed. 28 R. Civ. P. 8(e)(1). A complaint having the factual elements of a cause of action present but scattered throughout the complaint and not organized into 1 a “short and plain statement of the claim” may be dismissed for failure to satisfy Rule 8(a). Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th 2 Cir. 1988). 3 Kennedy v. Andrews, 2005 WL 3358205, *2–*3 (D. Ariz. 2005). Litigants are not required 4 to be absolutely destitute to obtain the benefits of the in forma pauperis statute. Escobedo 5 v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). However, “a plaintiff seeking [in forma 6 pauperis] status must allege poverty with some particularity, definiteness and certainty.” 7 Id. 8 When a complaint filed in forma pauperis fails to state a claim or lacks an arguable 9 basis in law “Rule 12(b)(6) and § 1915(d) both counsel dismissal.” Neitzke v. Williams, 10 490 U.S. 319, 328 (1989). The phrase “fails to state a claim on which relief may be granted” 11 of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6). 12 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (holding that a plaintiff “must 13 allege facts, not simply conclusions, that show that an individual was personally involved 14 in [injurious conduct].”). 15 “To prevail on a Bivens claim, a plaintiff must show (1) they were deprived of a 16 right secured by the Constitution, and (2) the defendant acted under color of federal law.” 17 Morgan v. United States, 323 F.3d 776, 780 (9th Cir. 2003). A Bivens claims cannot be 18 brought against a federal employee acting in his or her official capacity. Vaccaro v. Dobre, 19 81 F.3d 854, 857 (9th Cir. 1996). A Bivens suit against a defendant in his official capacity 20 is not allowed because it would be another way of pleading an action against the United 21 States, which is barred by sovereign immunity. Nurse v. United States, 226 F.3d 996, 1004 22 (9th Cir. 2000) (noting that customs agents could be sued in their individual capacity but 23 not in the execution of their official duties); see Solida v. McKelvey, 820 F.3d 1090, 1095 24 (9th Cir. 2016) (“An action against an officer, operating in his or her official capacity as a 25 United States agent, operates as a claim against the United States.”). The Supreme Court 26 has also held that the President of United States is entitled to absolute immunity from 27 Bivens actions. Nixon v. Fitzgerald, 457 U.S. 731, 758 (1982). 28 /// 1 II. Analysis 2 In the present case, Plaintif asserts a Bivens action against two defendants. (Doc. 1 3 at 2–3). The first listed defendant is Joseph Biden, the current President of the United 4 States. (Doc. 1 at 2). President Biden is entitled to absolute immunity from Bivens actions, 5 and thus Plaintiff has failed to state a claim against him. Nixon, 457 U.S. at 758. 6 The second listed defendant in this Bivens action is Steve Rosenbaum, Chief of the 7 Special Litigation Section of the Department of Justice Civil Rights Division. (Doc. 1 at 8 2). The only fact alleged by Plaintiff that could possibly be linked to Mr. Rosenbaum is 9 that Plaintiff “made a complaint with special litigation through civil rights web portal.” 10 (Doc. 1 at 4). However, it is unclear how this is related to the remainder of Plaintiff’s 11 allegations or the elements of a Bivens claim. While Plaintiff asserts that her First and Fifth 12 Amendment rights were violated, she in no way states a plausible claim as to how these 13 rights were violated by Mr. Rosenbaum. (See, e.g., Doc. 1 at 3–5) (“I have been subjected 14 to constant gang stalking/terrorism unnecessary requests by strangers for my ID and 15 personal info and theft of my funds.”). Even if Plaintiff has stated cognizable injuries, she 16 has not tied them to the listed defendants. (See, e.g., Doc. 1 at 5) (“I was assaulted by a 17 nurse [at] Juan Luis ER in August 2019. I was harassed and threatened [at] that ER in 18 August 2020 and left with a badly broken wrist.”). Plaintiff does not need to prove her 19 claim in her initial pleading, but she must bring forth sufficient factual allegations, related 20 to the defendants, to nudge her claim “across the line from conceivable to plausible.” See 21 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff’s failure to mention any 22 action by Mr. Rosenbaum in the complaint does not meet this standard. (Doc. 1). Moreover, 23 a claim arising from submitting a complaint through a Department of Justice website could 24 only relate to Mr. Rosenbaum in his official capacity as a federal employee, not in his 25 individual capacity, and is thus barred. See Vaccaro, 81 F.3d at 857. 26 The Court will allow Plaintiff to amend her complaint, but leave to amend is not 27 encouragement to amend. Any claims submitted to the Court must be non-conclusory and 28 tied to the particular actions of the listed defendants. See Ashcroft v. Iqbal, 556 U.S. 662, || 678 (2009). Because there exists a strong presumption in favor of granting leave to amend, || and Plaintiff's claims may not be completely futile, the Court will allow Plaintiff one more 3 || opportunity to clarify her complaint. See Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-1052 (9th Cir. 2003). 5 Although Plaintiff has failed to state a claim, the Court finds her to be in poverty for 6 || the purposes of 28 U.S.C. § 1915 and will allow her to proceed in forma pauperis pending 7 || the amendment of the complaint. See Escobedo, 787 F.3d at 1234. Plaintiff's only reported 8 || income is her monthly social security disability payment of $1,537.00 and she calculates || $982.00 in monthly expenses. The court filing fee of $402.00 is 26% of Plaintiff's total 10 || monthly income, and 72% of her net icome. The Court finds this to be a significant burden on Plaintiff to pursue her claims. /d. (“As noted above, there is no formula set forth by statute, regulation, or case law to determine when someone is poor enough to earn [in forma || pauperis] status. Whatever the standard, $350 is a lot of money to many millions of Americans.’). 15] I. Conclusion 16 IT IS ORDERED that the Motion to Proceed in forma pauperis (Doc. 3) is granted. 17 IT IS FURTHER ORDERED that the complaint is dismissed, without prejudice, and that Plaintiff may amend and refile the complaint to cure the deficiencies identified above by August 16, 2021 at 5:00 pm. If the complaint is not re-filed by this date the Clerk || of Court shall enter judgment on this matter. 21 Dated this 6th day of August, 2021. 22 23 A 24 James A. Teilborg 25 Senior United States District Judge 26 27 28
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