1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANIJEH ESTEGHLALIAN, Case No.: 19-cv-01808-AJB-MSB Plaintiff, 12 ORDER DISMISSING PLAINTIFF v. 13 ESTEGHLALIAN’S FIRST DEPARTMENT OF THE NAVY; EDCO AMENDED COMPLAINT WITH 14 WASTE AND RECYCLING SERVICES, LEAVE TO AMEND 15 Defendants. (Doc. No. 7) 16 17 Before the Court is Plaintiff Manijeh Esteghlalian’s (“Plaintiff”) First Amended 18 Complaint (“FAC”) for screening. Plaintiff, a non-prisoner proceeding pro se, brings this 19 action against Defendants the United States and EDCO Waste and Recycling Services 20 “(EDCO”). (Doc. No. 7.) For the reasons set forth below, the Court DISMISSES the FAC 21 WITH LEAVE TO AMEND. 22 I. SCREENING REQUIREMENT AND STANDARD 23 All parties instituting any civil action, suit, or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 $402. See 28 U.S.C. § 1914(a). Because Plaintiff is seeking to proceed in forma pauperis 26 (“IFP”), the Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2). 27 See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam) (holding 28 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners proceeding IFP); see also Lopez v. 1 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 2 § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss a complaint, or any 3 portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages from 4 defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The purpose of [screening] 5 is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 6 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 7 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 8 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 9 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 10 unless the court determines that “the pleading could not possibly be cured by the allegation 11 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing 12 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 13 901 F.2d 696, 701 (9th Cir. 1990)). 14 A. Discussion 15 1. Leave to Add a New Plaintiff 16 First, Plaintiff seeks leave to add a new plaintiff, Al Giovanni, to this action. (Doc. 17 No. 7 at 1.) The Court will grant leave to add Giovanni as a new plaintiff. See United States 18 v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (holding that leave to amend should be granted 19 with “extreme liberality” in order “to facilitate decision on the merits, rather than on the 20 pleadings or technicalities.”). However, this new plaintiff must either pay the $402.00 21 filing fee or file his own application to proceed IFP. “Although only one filing fee needs 22 to be paid per case, if multiple plaintiffs seek to proceed in forma pauperis, each plaintiff 23 must qualify for IFP status.” Anderson v. California, 2010 WL 4316996 at * 1 (S.D. Cal. 24 Oct. 27, 2010). Giovanni has not submitted an IFP application, or paid the $402 filing fee. 25 To the extent this new additional plaintiff seeks IFP status, they must submit an application 26 to proceed IFP. 27 Furthermore, the Court will also need to screen the new plaintiff’s claims under 28 28 1 U.S.C. § 1915A if he files for IFP status. As it currently stands, this new plaintiff lacks 2 standing to this case because the FAC does not allege any facts concerning them. See 3 Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (“It is well established . . . that before a 4 federal court can consider the merits of a legal claim, the person seeking to invoke the 5 jurisdiction of the court must establish the requisite standing to sue.”). 6 2. Defendant EDCO Waste and Recycling Services 7 Plaintiff brings this suit against the United States and EDCO. (Doc. No. 7.) She 8 contends the United States, acting through the Navy, is liable for damages under the 9 Federal Tort Claims Act (“FTCA”) because the Navy negligently dumped hazardous waste 10 materials on her business property, including mercury, used tires, and broken televisions. 11 (Id. ¶ 7.) 12 In screening Plaintiff’s original Complaint, the Court had found that the Complaint 13 did not mention any facts relating to EDCO, and only concluded that EDCO caused 14 Plaintiff injury. (Doc. No. 5 at 5.) Based on this deficiency, the Court dismissed the claim 15 against EDCO. (Id. at 6–7.) On this iteration of the Complaint, Plaintiff again failed to 16 allege any facts against EDCO. The FAC only states, in conclusory fashion, that “EDCO 17 Waste and Recycling Services had a duty not to be negligent” and that EDCO “caused 18 serious injuries to plaintiff and her business and her business was used for wedding and 19 living but not anymore after dumping trash in plaintiff [sic].” 20 “The standard for determining whether a plaintiff has failed to state a claim upon 21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 23 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 24 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 25 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed factual 26 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 27 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 28 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 1 specific task that requires the reviewing court to draw on its judicial experience and 2 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 3 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 4 see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 5 Again, the Court will remind Plaintiff that a complaint does not suffice if it tenders 6 naked assertion devoid of factual enhancement. See Iqbal, 556 U.S. at 678 (internal 7 quotations omitted).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANIJEH ESTEGHLALIAN, Case No.: 19-cv-01808-AJB-MSB Plaintiff, 12 ORDER DISMISSING PLAINTIFF v. 13 ESTEGHLALIAN’S FIRST DEPARTMENT OF THE NAVY; EDCO AMENDED COMPLAINT WITH 14 WASTE AND RECYCLING SERVICES, LEAVE TO AMEND 15 Defendants. (Doc. No. 7) 16 17 Before the Court is Plaintiff Manijeh Esteghlalian’s (“Plaintiff”) First Amended 18 Complaint (“FAC”) for screening. Plaintiff, a non-prisoner proceeding pro se, brings this 19 action against Defendants the United States and EDCO Waste and Recycling Services 20 “(EDCO”). (Doc. No. 7.) For the reasons set forth below, the Court DISMISSES the FAC 21 WITH LEAVE TO AMEND. 22 I. SCREENING REQUIREMENT AND STANDARD 23 All parties instituting any civil action, suit, or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 $402. See 28 U.S.C. § 1914(a). Because Plaintiff is seeking to proceed in forma pauperis 26 (“IFP”), the Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2). 27 See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam) (holding 28 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners proceeding IFP); see also Lopez v. 1 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 2 § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss a complaint, or any 3 portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages from 4 defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The purpose of [screening] 5 is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 6 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 7 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 8 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 9 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 10 unless the court determines that “the pleading could not possibly be cured by the allegation 11 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing 12 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 13 901 F.2d 696, 701 (9th Cir. 1990)). 14 A. Discussion 15 1. Leave to Add a New Plaintiff 16 First, Plaintiff seeks leave to add a new plaintiff, Al Giovanni, to this action. (Doc. 17 No. 7 at 1.) The Court will grant leave to add Giovanni as a new plaintiff. See United States 18 v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (holding that leave to amend should be granted 19 with “extreme liberality” in order “to facilitate decision on the merits, rather than on the 20 pleadings or technicalities.”). However, this new plaintiff must either pay the $402.00 21 filing fee or file his own application to proceed IFP. “Although only one filing fee needs 22 to be paid per case, if multiple plaintiffs seek to proceed in forma pauperis, each plaintiff 23 must qualify for IFP status.” Anderson v. California, 2010 WL 4316996 at * 1 (S.D. Cal. 24 Oct. 27, 2010). Giovanni has not submitted an IFP application, or paid the $402 filing fee. 25 To the extent this new additional plaintiff seeks IFP status, they must submit an application 26 to proceed IFP. 27 Furthermore, the Court will also need to screen the new plaintiff’s claims under 28 28 1 U.S.C. § 1915A if he files for IFP status. As it currently stands, this new plaintiff lacks 2 standing to this case because the FAC does not allege any facts concerning them. See 3 Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (“It is well established . . . that before a 4 federal court can consider the merits of a legal claim, the person seeking to invoke the 5 jurisdiction of the court must establish the requisite standing to sue.”). 6 2. Defendant EDCO Waste and Recycling Services 7 Plaintiff brings this suit against the United States and EDCO. (Doc. No. 7.) She 8 contends the United States, acting through the Navy, is liable for damages under the 9 Federal Tort Claims Act (“FTCA”) because the Navy negligently dumped hazardous waste 10 materials on her business property, including mercury, used tires, and broken televisions. 11 (Id. ¶ 7.) 12 In screening Plaintiff’s original Complaint, the Court had found that the Complaint 13 did not mention any facts relating to EDCO, and only concluded that EDCO caused 14 Plaintiff injury. (Doc. No. 5 at 5.) Based on this deficiency, the Court dismissed the claim 15 against EDCO. (Id. at 6–7.) On this iteration of the Complaint, Plaintiff again failed to 16 allege any facts against EDCO. The FAC only states, in conclusory fashion, that “EDCO 17 Waste and Recycling Services had a duty not to be negligent” and that EDCO “caused 18 serious injuries to plaintiff and her business and her business was used for wedding and 19 living but not anymore after dumping trash in plaintiff [sic].” 20 “The standard for determining whether a plaintiff has failed to state a claim upon 21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 23 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 24 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 25 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed factual 26 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 27 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 28 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 1 specific task that requires the reviewing court to draw on its judicial experience and 2 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 3 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 4 see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 5 Again, the Court will remind Plaintiff that a complaint does not suffice if it tenders 6 naked assertion devoid of factual enhancement. See Iqbal, 556 U.S. at 678 (internal 7 quotations omitted). The allegations that EDCO was negligent, and caused her injury, are 8 legal conclusions devoid of any factual support whatsoever. Despite this defect, the Court 9 will afford Plaintiff one final attempt to state a claim against EDCO. The claim will be 10 DISMISSED WITH LEAVE TO AMEND. 11 II. MOTION TO PROCEED IN FORMA PAUPERIS 12 Plaintiff also seeks for the Court to reconsider its prior order denying as moot 13 Plaintiff’s IFP motion. However, in its prior order, the Court had also directed Plaintiff to 14 file a renewed IFP motion with her FAC. (Doc. No. 5 at 7.) Plaintiff did not do so. Because 15 the Court will provide leave for Plaintiff to file a Second Amended Complaint, the Court 16 again directs Plaintiff to file a renewed IFP application, if she so wishes. To be clear, this 17 does not mean that Plaintiff cannot be granted IFP status. She just simply has to file a new 18 IFP motion with her Second Amended Complaint for the Court’s consideration. 19 III. CONCLUSION 20 In light of the foregoing, the Court DISMISSES Plaintiff’s FAC. (Doc. No. 7.) “The 21 court should give leave [to amend] freely when justice so requires.” Fed. R. Civ. P. 22 15(a)(2). In the Ninth Circuit, “Rule 15’s policy of favoring amendments to pleadings 23 should be applied with ‘extreme liberality,’” United States v. Webb, 655 F.2d 977, 979 (9th 24 Cir. 1981), and “[t]his policy is applied even more liberally to pro se litigants.” Eldridge v. 25 Block, 832 F.2d 1132, 1135 (9th Cir. 1987). As such, the Court provides Plaintiff LEAVE 26 TO AMEND to address the deficiencies stated herein. In particular, the Second Amended 27 Complaint should include the factual allegations pertaining to the new plaintiff, Giovanni. 28 Plaintiff Giovanni should also either pay the filing fee or file an application for IFP status. 1 || Plaintiff Esteghlalian may also file a renewed IFP motion with the Second Amended 2 ||Complaint. Lastly, Plaintiffs need to plead facts, and not merely legal conclusions, relating 3 ||to Defendant EDCO to show how this Defendant would be liable to Plaintiffs. Should 4 Plaintiffs wish, they may file a Second Amended Complaint and IFP motions by 5 || September 30, 2021. Failure to do so will result in a dismissal of Plaintiffs’ action. 6 7 IT IS SO ORDERED. 8 ||Dated: August 25, 2021
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