Daniels v. BMF V AZ Saddle LLC

• Court: District Court, D. Arizona
• Decided: May 22, 2023
• Docket: 4:23-cv-00070
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Naomi Daniels, No. CV-23-0070-TUC-CKJ (EJM) 10 Plaintiff, 11 v. REPORT AND RECOMMENDATION

12 BMF VAZ Saddle, LLC and Cynthia Rodriguez, 13 14 Defendants. 15 On February 8, 2023, Plaintiff Naomi Daniels filed a pro se Complaint (Doc. 1) 16 alleging, inter alia, “housing discrimination and racial discrimination ‘civil rights[.]’” 17 Compl. (Doc. 1) at 1. Plaintiff did not immediately pay the $402.00 civil action filing fee 18 but filed an Application to Proceed in District Court Without Prepaying Fees or Costs 19 (Long Form) (Doc. 2). 20 21 I. APPLICATION TO PROCEED IN FORMA PAUPERIS 22 The Court may allow a plaintiff to proceed without prepayment of fees when it is 23 shown by affidavit that she “is unable to pay such fees[.]” 28 U.S.C. § 1915(a)(1). 24 Plaintiff’s statement, made under penalty of perjury, establishes that Plaintiff is without 25 earned income and no assets. The Court finds Plaintiff is unable to pay the fees. The 26 Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) will 27 be granted. 28 . . . 1 II. STATUTORY SCREENING OF PLAINTIFF’S COMPLAINT 2 This Court is required to dismiss a case if the Court determines that the allegation 3 of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action 4 “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or 5 (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 6 U.S.C. § 1915(e)(2)(B). 7 A pleading must contain a “short and plain statement of the claim showing that the 8 pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not demand 9 detailed factual allegations, “it demands more than an unadorned, the-defendant- 10 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 11 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 12 statements, do not suffice.” Id. Where the pleader is pro se, however, the pleading 13 should be liberally construed in the interests of justice. Johnson v. Reagan, 524 F.2d 14 1123, 1124 (9th Cir. 1975); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 15 Nonetheless, a complaint must set forth a set of facts that serves to put defendants on 16 notice as to the nature and basis of the claim(s). See Brazil v. U.S. Dept. of Navy, 66 F.3d 17 193, 199 (9th Cir. 1995). 18 A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent standards 19 than formal pleadings drafted by lawyers.’” Hebbe, 627 F.3d at 342 (quoting Erickson v. 20 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “Rule 8(a)’s simplified pleading standard 21 applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 22 U.S. 506, 513 (2002). “Given the Federal Rules’ simplified standard for pleading, ‘[a] 23 court may dismiss a complaint only if it is clear that no relief could be granted under any 24 set of facts that could be proved consistent with the allegations.’” Id. at 514 (quoting 25 Hison v. King & Spaulding, 467 U.S. 69, 73 (1984)) (alterations in original); see also 26 Johnson, et al. v. City of Shelby, Mississippi, 574 U.S. 10, 11 (2014) (“Federal pleading 27 rules call for ‘a short and plain statement of the claim showing that the pleader is entitled 28 to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint 1 for imperfect statement of the legal theory supporting the claim asserted”). 2 If the Court determines that a pleading could be cured by the allegation of other 3 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 4 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000) (en banc). The 5 Court should not, however, advise the litigant how to cure the defects. This type of 6 advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v. 7 Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to 8 decide whether the court was required to inform a litigant of deficiencies). 9 10 III. SUBJECT MATTER JURISDICTION 11 As an initial matter, this Court must consider whether it has jurisdiction to hear 12 Ms. Daniels’ claims. “Federal courts are courts of limited jurisdiction.” Kokkonen v. 13 Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A district court has 14 original jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of 15 the United States.” 28 U.S.C. § 1331. This is known as federal question jurisdiction. 16 District courts also have original jurisdiction “of all civil actions where the matter in 17 controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is 18 between (1) citizens of different States; (2) citizens of a State and citizens or subjects of a 19 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign 20 state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title 21 as plaintiff and citizens of a State or of different States.” 28 U.S.C. § 1332. This is 22 referred to as diversity jurisdiction. 23 Plaintiff’s Complaint (Doc. 1) asserts that this Court “has jurisdiction under 28 24 U.S.C. section 1391(B)(2) because it is where the events giving rise to this claim 25 occurred. Compl. (Doc. 1) at 1. Plaintiff has confused jurisdiction with venue. Compare 26 28 U.S.C. § 1391, with 28 U.S.C. § 1332. Plaintiff claims that she “seeks for the 27 recovery for the damages by the Defendants for the violations/wrongs of the Plaintiff Bill 28 of Rights, Constitutional Rights, and Fair Housing Rights.” Compl. (Doc. 1) at 1–2. 1 Plaintiff also indicates that her Complaint (Doc. 1) is based upon Section 1983, Title 42, 2 United States Code, “to redress the deprivation under the color of state law and rights 3 secured by the Constitution of the United States and Bill of Rights.” Compl. (Doc. 1) at 4 1. As such, the Court finds it has federal subject matter jurisdiction over Plaintiff’s 5 claims.1 6 7 IV. COMPLAINT—FAILURE TO STATE A CLAIM 8 Plaintiff’s Complaint (Doc. 1) asserts that “defendant retalited [sic] by methods of 9 housing discrimination and racial discrimination against her when she inform [sic] the 10 Defendants by the certified mail concerning the over payment of funds in which the 11 Lease contract tender is denoted in Mexican Peso, and that the defendants is [sic] 12 withholding lawful U.S. Dollar when the Plaintiff paid with the United States Postal 13 Money Order and requested all funds to be return to the Plaintiff Naomi Daniels.” 14 Compl. (Doc. 1) at 2. “Plaintiff contends that she is indigeous [sic] Cherokee was 15 discriminated against when the Defendants placed a notice of unpaid rent on the front 16 door and file for evictions against the Plaintiff.” Id. Plaintiff urges that the notice was 17 regarding a court hearing, and that placing it on her door “without a process server or 18 proper delivery method[]” was improper. Id. at 3. Plaintiff further asserts that “Plaintiff 19 did not provide any information about the Arizona Residential Landlord and Tenant 20 Act.”2 Id. Plaintiff claims that she paid her rent in full for the entire year. Id. at 3–4. 21 Plaintiff alleges that Defendant committed a “Breach of Peace UCC 9 – Part 6 when the 22 notice was placed on front door of the dwelling unit.” Compl. (Doc. 1) at 4. Plaintiff 23 also argues that “the Petitioner did not Provide a Securization [sic] Audit of an [sic] 24 Financial History and Said Ownership of Said Property.” Id. Plaintiff claims that “the

25 1 To the extent that Plaintiff ostensibly raises a state law breach of contract claim, the 26 Court may exercise supplemental jurisdiction if it is “so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of 27 the United States Constitution.” 28 U.S.C. § 1367(a). 28 2 The Court surmises that Plaintiff meant to assert that Defendant did not provide her with a copy of the Arizona Landlord and Tenant Act. 1 Petitioner did not follow the Residential Landlord And Tenant Act.” Id. at 5. Plaintiff 2 references alleged requirements of a consumer credit contract. Id. Plaintiff alleged that 3 “Defendants violated Federal Trade Act, Federal Deposit Insurance Act, Truth in 4 Lending and Truth in Savings Act (TILA the Truth in Savings Act (TISA).” Id. Plaintiff 5 also seeks “compensation under 18 USC 1983 Civil Rights Violation, Housing 6 Discrimination and Racial Discrimination[.]” Compl. (Doc. 1) at 5. Plaintiff then lists 7 the following federal statutes: 18 U.S.C. § 1341, 18 U.S.C. § 1001, U.S.C. § 1002, 15 8 U.S.C. § 1, and 18 U.S.C. § 1343. Compl. (Doc. 1) at 5. Plaintiff seeks damages in the 9 amount of 22 million dollars ($22M). Id. at 6. 10 A. Section 1983 11 “[M]ost rights secured by the Constitution are protected only against infringement 12 by governments.” Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156 (1978) (citations 13 omitted). The Fourteenth Amendment of the United States Constitution provides in 14 relevant part: 15 No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive 16 any person of life, liberty, or property, without due process of law; nor deny 17 to any person within its jurisdiction the equal protection of the laws. 18 U.S. Const. amend. XIV, § 1. “Because the Amendment is directed at the States, it can 19 be violated only by conduct that may be characterized as ‘state action.’” Lugar v. 20 Edmondson Oil Company, Inc., 457 U.S. 922, 924 (1982). Similarly, Section 1983, 42 21 U.S.C., provides in part: 22 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 23 subjects, or causes to be subjected, any citizen of the United States or other 24 person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be 25 liable to the party injured in an action at law, suit in equity, or other proper 26 proceeding for redress[.] 27 42 U.S.C. § 1983. “In cases under § 1983, ‘under color’ of law has consistently been 28 treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.” 1 Lugar, 457 U.S. at 928 (quoting United States v. Price, 383 U.S. 787, 794 n.7 (1966)); 2 see also Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 3 1999) (citations omitted) (“[Section] 1983 excludes from its reach merely private 4 conduct, no matter how discriminatory or wrong.”). Accordingly, “the conduct allegedly 5 causing the deprivation of a federal right [must] be fairly attributable to the State.” 6 Lugar, 457 U.S. at 937. 7 Plaintiff’s Complaint (Doc. 1) is devoid of any allegations to suggest that the State 8 acted in a manner causing a deprivation of her constitutional rights. See Lugar, 457 U.S. 9 at 937. The Court further finds that there are no possible allegations of fact that will 10 correct Plaintiff’s failure. Accordingly, Plaintiff’s claim pursuant to 42 U.S.C. § 1983 11 will be dismissed without leave to amend. 12 B. Fair Housing Act 13 In 1968, Congress passed the Fair Housing Act (“FHA”) to “address[] the denial 14 of housing opportunities on the basis of ‘race, color, religion, or national origin.’” Texas 15 Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 16 U.S. 519, 530 (2015) (citing Civil Rights Act of 1968, § 804, 82 Stat. 83). “Then in 17 1988, Congress amended the FHA[,] [and] [a]mong other provisions it created certain 18 exemptions from liability and added ‘familial status’ as a protected characteristic.” Id. 19 (citing Fair Housing Amendments Act of 1988, 102 Stat. 1619). The FHA makes it 20 illegal “[t]o discriminate against any person in the terms, conditions, or privileges of sale 21 or rental of a dwelling, or in the provision of services or facilities in connection 22 therewith, because of race, color, religion, sex, familial status, or national origin.” 42 23 U.S.C. § 3604(b). 24 Plaintiff indicates that she is an indigenous Cherokee. Compl. (Doc. 1) at 2. 25 Plaintiff goes on to allege that she “was discriminated against when the Defendants 26 placed a notice of unpaid rent on the front door and file [sic] for evictions against [her].” 27 Id. Plaintiff does not provide any facts to explain how this action was an act of racial 28 discrimination. Plaintiff further “contends the defendant retaliated by methods of 1 housing discrimination and Racial Discrimination against her when she inform [sic] the 2 Defendants by the certified mail concerning the over payment of funds in which the 3 Lease contract tender is denoted in Mexican Peso, and that the defendants is [sic] 4 withholding lawful U.S. dollar when the Plaintiff paid with the United States Postal 5 Money Order and requested all funds to be return [sic] to the Plaintiff Naomi Daniels.” 6 Id. Again, Plaintiff fails to explain how Defendants’ action were in any way retaliatory 7 or ran afoul of the FHA. Plaintiff’s statements are no more than “an unadorned, the- 8 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 9 (2009). As such, Plaintiff’s FHA claim will be dismissed with leave to amend. 10 C. Breach of Contract 11 Plaintiff claims that “the lease contract denotes tender as Peso.” Compl. (Doc. 1) 12 at 3. Plaintiff asserts that the International Organization for Standardization (“ISO”) 13 dollar sign symbol ($) is used for both Mexican Pesos and United States Dollars, and 14 therefore dollars must be denoted with U.S.D. following the numeric amount. Id., Exh. 15 “3” at 19, 21. Plaintiff contends that because she paid in dollars, the amount should have 16 been converted to pesos upon deposit. See id. at 4. Plaintiff opines that she is entitled to 17 damages because of this breach. See id. at 4–6. Plaintiff’s claims are without merit. 18 “The constitutional authority of congress to provide a currency for the whole 19 country is now firmly established.” The Legal Tender Cases, 110 U.S. 421, 445 (1884). 20 “To this end, congress has denied the quality of legal tender to foreign coins, and has 21 provided by law against the imposition of counterfeit and base coin on the community.” 22 Id. at 446. “To the same end, congress may restrain, by suitable enactments, the 23 circulation as money of any notes not issued under its own authority.” Id. Moreover, 24 “congress is authorized to establish a national currency, either in coin or in paper, and to 25 make that currency lawful money for all purposes, as regards the nation government or 26 private individuals.” Id. at 448. “The power of making the notes of the United States a 27 legal tender in payment of private debts, being included in the power to borrow money 28 and to provide a national currency, is not defeated or restricted by the fact that its 1 exercise may affect the value of private contracts.” Id. “The Constitution was designed 2 to provide the same currency, having a uniform legal value in all the States.” Norman v. 3 Baltimore & O.R. Co., 294 U.S. 240, 303 (1935) (internal quotations omitted). As such, 4 “[e]very contract for the payment of money, simply, is necessarily subject to the 5 constitutional power of the government over the currency, whatever the power may be, 6 and the obligation of the parties is, therefore, assumed with reference to that power.” The 7 Legal Tender Cases, 110 U.S. at 449 (citations omitted). The Restatement (Second) of 8 Contracts § 5 provides: 9 Much contract law consists of rules which may be varied by agreement of the parties. Such rules are sometimes stated in terms of presumed intention, 10 and they may be thought of as implied terms of an agreement. They often 11 rest, however, on considerations of public policy rather than on manifestation of the intention of the parties. 12 13 The currency of the United States is the dollar. See American Money, 14 https://www.usa.gov/currency (last visited May 19, 2023). Based upon the constitutional 15 authority of congress and public policy, a contract executed in the United States, for the 16 benefit of United States’ citizens, cannot be interpreted to be based upon any form of 17 currency other than the legal tender of the United States. See 31 U.S.C. § 5103. 18 Accordingly, to the extent that Plaintiff is asserting a breach of contract claim based upon 19 the lease contract indicating values in Mexican Pesos, it will be dismissed without leave 20 to amend. 21 D. Miscellaneous References to the United States Code 22 Plaintiff’s Complaint (Doc. 1) lists various sections of the United States Code, 23 Title 18. As an initial matter, Title 18 contains criminal statutes and is irrelevant to a 24 private, civil action. Plaintiff also references 15 U.S.C. § 1 which deals with inter alia 25 contracts in restraint of trade or commerce, which is similarly irrelevant to this cause of 26 action. Furthermore, Plaintiff has failed to provide any facts to describe what type of 27 claim she may be attempting. The Court will dismiss without leave to amend any claims 28 related to 18 U.S.C. §§ 1001, 1002, 1341, 1343 and 15 U.S.C. § 1. 1 2 V. INJUNCTIVE RELIEF 3 Plaintiff has also filed a motion for injunctive relief regarding the evictions 4 process in Pima County Justice Court (Doc. 5). 5 Whether to grant or deny a motion for a temporary restraining order or preliminary 6 injunction is within the Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 7 1130, 1132–33 (9th Cir. 1979). An injunction or restraining order is appropriate to grant 8 “intermediate relief of the same character as that which may be granted finally,” but relief 9 is not proper when it is requested on matters lying wholly outside the issues in the suit. 10 DeBeers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). To obtain injunctive 11 relief, the party “must necessarily establish a relationship between the injury claimed in 12 the party’s motion and the conduct asserted in the complaint.” Devose v. Herrington, 42 13 F.3d 470, 471 (8th Cir. 1994) (per curiam). In other words, Plaintiff must seek injunctive 14 relief related to the merits of her underlying claims. Because the Court has dismissed the 15 Complaint, the Court will deny without prejudice Plaintiff’s Request: Cease and Detist 16 [sic] (Doc. 5). 17 18 VI. WARNINGS 19 A. Amendments 20 An amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 21 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 22 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original Complaint is treated 23 as nonexistent. Ferdik, 963 F.2d at 1262. Thus, grounds for relief alleged in the original 24 Complaint that are not alleged in an amended complaint are waived. King v. Atiyeh, 814 25 F.2d 565, 567 (9th Cir. 1987). 26 B. Address Changes 27 Plaintiff must file and serve a notice of a change of address in accordance with 28 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 1 for other relief with a notice of change of address. Failure to comply may result in 2 dismissal of this action. 3 C. Rules of Court 4 Plaintiff shall familiarize herself with the Federal Rules of Civil Procedure and 5 Local Rules for the District of Arizona, both of which can be found on the Court’s web 6 site at www.azd.uscourts.gov. Plaintiff is advised that a Handbook for Self-Represented 7 Litigants is available on the Court’s website at: http://www.azd.uscourts.gov/handbook- 8 self-represented-litigants. In addition, Step Up to Justice offers a free, advice-only clinic 9 for self-represented civil litigants on Thursdays from 1:30 p.m. to 3:30 p.m. If Plaintiff 10 wishes to schedule a clinic appointment, she should contact the courthouse librarian, 11 Mary Ann O’Neil, at MaryAnn_O’Neil@LB9.uscourts.gov. 12 D. Copies 13 Plaintiff must submit an additional copy of every filing for use by the Court. See 14 LRCiv. 5.4. Failure to comply may result in the filing being stricken without further 15 notice to Plaintiff. 16 E. Possible Dismissal 17 If Plaintiff fails to timely comply with every provision of this Order, including 18 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 19 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 20 for failure to comply with any order of the Court). 21 22 VII. CONCLUSION 23 For the reasons delineated above, the Magistrate Judge recommends that the 24 District Judge enter an order: 25 (1) GRANTING Plaintiff’s Application to Proceed in District Court Without 26 Prepaying Fees or Costs (Doc. 2); 27 (2) DISMISSING Plaintiff’s Complaint (Doc. 1) for failure to state a claim and 28 granting leave to file a first amended complaint consistent with this Report and 1 Recommendation; and 2 (3) DENYING Plaintiff's Request: Cease and Detist [sic] (Doc. 5) WITHOUT 3 PREJUDICE. 4 Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil 5 || Procedure, any party may serve and file written objections within fourteen (14) days after 6|| being served with a copy of this Report and Recommendation. A party may respond to 7\| 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. If objections are filed, the parties should use the following case number: CV-23- 10] 0070-TUC-CKJ. 11 Failure to file timely objections to any factual or legal determination of the 12|| Magistrate Judge may result in waiver of the right of review. 13 14 Dated this 22nd day of May, 2023. 15

7 Eric J. Mafovich United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28

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