1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alfred E. Caraffa, No. CV 20-00227-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Maricopa County Sheriff’s Office, et al., 13 14 Defendants.
15 16 On January 30, 2020, Plaintiff Alfred E. Caraffa, who is confined in a Maricopa 17 County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and Bivens 18 v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 19 an Application to Proceed In Forma Pauperis. In a February 4, 2020 Order, the Court 20 granted the Application to Proceed and dismissed the Complaint for failure to comply with 21 Rule 8 of the Federal Rules of Civil Procedure and Rule 3.4 of the Local Rules of Civil 22 Procedure. The Court gave Plaintiff thirty days to file an amended complaint that cured 23 the deficiencies identified in the Order. 24 On March 3, 2020, Plaintiff filed a Motion for Default Judgment. In a March 6, 25 2020 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed 26 to state a claim and denied the Motion for Default Judgment. The Court gave Plaintiff 30 27 days to file a second amended complaint that cured the deficiencies identified in the Order. 28 1 On March 23, 2020, Plaintiff filed a Second Amended Complaint (Doc. 10) and 2 another Motion for Default Judgment (Doc. 11). On March 24, 2020, he filed a Motion for 3 Injunction (Doc. 12). The Court will dismiss the Second Amended Complaint and this 4 action and will deny the pending motions. 5 I. Statutory Screening of Prisoner Complaints 6 The Court is required to screen complaints brought by prisoners seeking relief 7 against a governmental entity or an officer or an employee of a governmental entity. 28 8 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 9 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 10 relief may be granted, or that seek monetary relief from a defendant who is immune from 11 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 12 A pleading must contain a “short and plain statement of the claim showing that the 13 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 14 not demand detailed factual allegations, “it demands more than an unadorned, the- 15 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Id. 18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 19 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 20 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 23 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 25 allegations may be consistent with a constitutional claim, a court must assess whether there 26 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 27 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 28 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 1 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 2 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 3 U.S. 89, 94 (2007) (per curiam)). 4 II. Second Amended Complaint 5 In his two-count Bivens Complaint, Plaintiff sues Defendant United States and seeks 6 899 million dollars in damages. 7 In Count One, Plaintiff raises a due process claim, claiming the City of Tempe and 8 Tempe Police Department are subparts of the State of Arizona, which is a subpart of the 9 United States, and, therefore, “under the United States Constitution.” He asserts the City 10 of Tempe and Tempe Police Department are government entities of the United States and 11 “do not maintain policies or customs to violate the federal Constitution.” 12 In Count Two, Plaintiff raises a due process claim regarding his access to the courts. 13 He claims the Court denied him a default judgment. He asserts that his “legal documents 14 had case numbers” and that “the Court claims ‘that the City of Tempe and Tempe Police 15 Dept. are not parties under the United States to this lawsuit,’ . . . [b]ut the defendants accept 16 federally funded money.” 17 III. Failure to State a Claim 18 A remedy does not exist under Bivens against the United States because a Bivens 19 action is only available against federal officers, not against the United States or agencies 20 of the federal government. F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994). Thus, the 21 Court will dismiss Defendant United States and the Second Amended Complaint. 22 IV. Dismissal Without Leave to Amend 23 Because Plaintiff has failed to state a claim in his Second Amended Complaint, the 24 Court will dismiss his Second Amended Complaint. “Leave to amend need not be given 25 if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 26 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 27 particularly broad where Plaintiff has previously been permitted to amend his complaint. 28 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 1 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 2 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 3 Plaintiff has made three efforts at crafting a viable complaint and appears unable to 4 do so despite specific instructions from the Court. The Court finds that further 5 opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss 6 Plaintiff’s Second Amended Complaint without leave to amend. 7 V. Motion for Default Judgment 8 An entry of default is only appropriate “[w]hen a party against whom a judgment 9 for affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 10 55(a). Defendant has not been served and, therefore, was not required to file a response. 11 See Fed. R. Civ. P.
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1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alfred E. Caraffa, No. CV 20-00227-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Maricopa County Sheriff’s Office, et al., 13 14 Defendants.
15 16 On January 30, 2020, Plaintiff Alfred E. Caraffa, who is confined in a Maricopa 17 County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and Bivens 18 v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 19 an Application to Proceed In Forma Pauperis. In a February 4, 2020 Order, the Court 20 granted the Application to Proceed and dismissed the Complaint for failure to comply with 21 Rule 8 of the Federal Rules of Civil Procedure and Rule 3.4 of the Local Rules of Civil 22 Procedure. The Court gave Plaintiff thirty days to file an amended complaint that cured 23 the deficiencies identified in the Order. 24 On March 3, 2020, Plaintiff filed a Motion for Default Judgment. In a March 6, 25 2020 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed 26 to state a claim and denied the Motion for Default Judgment. The Court gave Plaintiff 30 27 days to file a second amended complaint that cured the deficiencies identified in the Order. 28 1 On March 23, 2020, Plaintiff filed a Second Amended Complaint (Doc. 10) and 2 another Motion for Default Judgment (Doc. 11). On March 24, 2020, he filed a Motion for 3 Injunction (Doc. 12). The Court will dismiss the Second Amended Complaint and this 4 action and will deny the pending motions. 5 I. Statutory Screening of Prisoner Complaints 6 The Court is required to screen complaints brought by prisoners seeking relief 7 against a governmental entity or an officer or an employee of a governmental entity. 28 8 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 9 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 10 relief may be granted, or that seek monetary relief from a defendant who is immune from 11 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 12 A pleading must contain a “short and plain statement of the claim showing that the 13 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 14 not demand detailed factual allegations, “it demands more than an unadorned, the- 15 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Id. 18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 19 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 20 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 23 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 25 allegations may be consistent with a constitutional claim, a court must assess whether there 26 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 27 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 28 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 1 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 2 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 3 U.S. 89, 94 (2007) (per curiam)). 4 II. Second Amended Complaint 5 In his two-count Bivens Complaint, Plaintiff sues Defendant United States and seeks 6 899 million dollars in damages. 7 In Count One, Plaintiff raises a due process claim, claiming the City of Tempe and 8 Tempe Police Department are subparts of the State of Arizona, which is a subpart of the 9 United States, and, therefore, “under the United States Constitution.” He asserts the City 10 of Tempe and Tempe Police Department are government entities of the United States and 11 “do not maintain policies or customs to violate the federal Constitution.” 12 In Count Two, Plaintiff raises a due process claim regarding his access to the courts. 13 He claims the Court denied him a default judgment. He asserts that his “legal documents 14 had case numbers” and that “the Court claims ‘that the City of Tempe and Tempe Police 15 Dept. are not parties under the United States to this lawsuit,’ . . . [b]ut the defendants accept 16 federally funded money.” 17 III. Failure to State a Claim 18 A remedy does not exist under Bivens against the United States because a Bivens 19 action is only available against federal officers, not against the United States or agencies 20 of the federal government. F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994). Thus, the 21 Court will dismiss Defendant United States and the Second Amended Complaint. 22 IV. Dismissal Without Leave to Amend 23 Because Plaintiff has failed to state a claim in his Second Amended Complaint, the 24 Court will dismiss his Second Amended Complaint. “Leave to amend need not be given 25 if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 26 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 27 particularly broad where Plaintiff has previously been permitted to amend his complaint. 28 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 1 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 2 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 3 Plaintiff has made three efforts at crafting a viable complaint and appears unable to 4 do so despite specific instructions from the Court. The Court finds that further 5 opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss 6 Plaintiff’s Second Amended Complaint without leave to amend. 7 V. Motion for Default Judgment 8 An entry of default is only appropriate “[w]hen a party against whom a judgment 9 for affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 10 55(a). Defendant has not been served and, therefore, was not required to file a response. 11 See Fed. R. Civ. P. 12(a). Thus, the Court will deny Plaintiff’s Motion for Default 12 Judgment. 13 VI. Motion For Injunction 14 An injunction or restraining order is appropriate to grant intermediate relief of the 15 same character as which may be granted finally, and relief is not proper when requested on 16 matters lying wholly outside the issues in suit. See DeBeers Consol. Mines v. United 17 States., 325 U.S. 212, 220 (1945); Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir.), 18 amended, 131 F.3d 950 (11th Cir. 1997). To obtain injunctive relief, the party “must 19 necessarily establish a relationship between the injury claimed in the party’s motion and 20 the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 21 1994). In other words, Plaintiff must seek injunctive relief related to the merits of his 22 underlying claims. Because the Court has dismissed the Second Amended Complaint and 23 this action, the Court will deny the Motion for Injunction. 24 IT IS ORDERED: 25 (1) Plaintiff’s Second Amended Complaint (Doc. 10) and this action are 26 dismissed for failure to state a claim, and the Clerk of Court must enter judgment 27 accordingly. 28 . . . . 1 (2) The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 3 (3) Plaintiffs Motion for Default Judgment (Doc. 11) and Motion for Injunction (Doc. 12) are denied. 5 (4) | The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 7 | of this decision would be taken in good faith and certifies that an appeal would not be taken 8 | in good faith for the reasons stated in the Order and because there is no arguable factual or legal basis for an appeal. 10 Dated this 30th day of March, 2020. 11
Michael T. Liburdi 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28