Fariss-Borello v. Scottsdale, City of

D. Arizona

Fariss-Borello v. Scottsdale, City of

DecidedSeptember 11, 2019

Docket2:18-cv-04852

StatusUnknown

This text of Fariss-Borello v. Scottsdale, City of (Fariss-Borello v. Scottsdale, City of) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fariss-Borello v. Scottsdale, City of, (D. Ariz. 2019).

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Michael Anthony Fariss-Borello, No. CV-18-04852-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 City of Scottsdale,

13 Defendant. 14 15 Defendant City of Scottsdale filed a Motion to Dismiss for Failure to State a Claim. 16 (Doc. 10). Prior to the motion, however, the Complaint was never screened, as required by 17 28 U.S.C. § 1915(e)(2)(B). Previously, Plaintiff Michael Fariss-Borello (“Plaintiff”) filed 18 an Application for Leave to Proceed In Forma Pauperis, which the Court granted. (Docs. 19 2, 8). The Court will conduct that screening now, dismiss the Complaint (Doc. 1, 20 “Complaint”) with leave to amend, and deny Defendant’s Motion as moot. 21 I. Legal Standards 22 The Court must review the complaint to determine whether the action: 23 (i) is frivolous or malicious; 24 (ii) fails to state a claim on which relief may be granted; or 25 (iii) seeks monetary relief against a defendant who is immune from such relief. 26 28 U.S.C. § 1915(e)(2)(B). Additionally, Rule 8(a) of the Federal Rules of Civil Procedure 27 requires that: 28 A pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim, or third-party 1 claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless 2 the court already has jurisdiction and the claim needs no new 3 grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to 4 relief, and (3) a demand for judgment for the relief the pleader 5 seeks. Relief in the alternative or of several different types may be demanded. 6 7 While Rule 8 does not demand detailed factual allegations, “it demands more than 8 an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 9 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported 10 by mere conclusory statements, do not suffice.” Id. A complaint “must contain sufficient 11 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. 12 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible 13 “when the plaintiff pleads factual content that allows the court to draw the reasonable 14 inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 15 U.S. at 556). A complaint that provides “labels and conclusions” or “a formulaic recitation 16 of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor will a 17 complaint suffice if it presents nothing more than “naked assertions” without “further 18 factual enhancement.” Id. at 557. 19 II. Statutory Screening 20 The basis for the complaint is difficult to decipher, but it appears Plaintiff is 21 attempting to file a claim under 18 U.S.C. § 371—Conspiracy to commit offense or to 22 defraud the United States. (Complaint at 1). Plaintiff cites that statute in the “Jurisdiction” 23 portion of the complaint. (Complaint at 1). Among other things, the Complaint mentions 24 the Scottsdale Police Department asking him about a neighbor who was applying to be an 25 FBI agent, which the Office of Scottsdale Mayor Jim Lane told him was a federal program. 26 He demands $50 million. (Complaint at 4). 27 The statute Plaintiff cites is a criminal statute. 18 U.S.C. § 371 (“If two or more 28 persons conspire either to commit any offense against the United States, or to defraud the 1 United States, or any agency thereof in any manner or for any purpose, and one or more of 2 such persons do any act to effect the object of the conspiracy, each shall be fined under this 3 title or imprisoned not more than five years, or both.”). Criminal statutes, however, “do not 4 convey a private right of action.” Rockefeller v. U.S. Court of Appeals Office, for Tenth 5 Circuit Judges, 248 F. Supp. 2d 17, 23 (D.D.C. 2003); see Fiorno v. Turner, 476 F. Supp. 6 962, 963 (D. Mass. 1979) ([P]laintiff has failed to cite, and the court has been unable to 7 locate, any authority which would support implying a civil cause of action for violations 8 of [18 U.S.C. § 371].”). Therefore, Plaintiff has failed to state a claim on which relief can 9 be granted. 10 III. Leave to Amend 11 In accordance with the well-settled law in this Circuit, however, because “it is not 12 ‘absolutely clear’ that [Plaintiff] could not cure [the Complaint’s] deficiencies by 13 amendment,” the Court will give him the opportunity to do so. Jackson v. Barnes, 749 F.3d 14 755, 767 (9th Cir. 2014); see Fed. R. Civ. P. 15(a)(2) (leave to amend should be “freely” 15 given “when justice so requires[]”); Lopez v. Smith, 203 F.3d 112, 1131 (9th Cir. 2000) (en 16 banc) (holding that a pro se litigant must be given leave to amend his complaint “if it 17 appears at all possible that the plaintiff can correct the defect” in the complaint) (internal 18 quotation marks and citations omitted). Plaintiff’s complaint must be amended to address 19 the deficiencies identified above. Plaintiff’s amended complaint should follow the form 20 detailed in Rule 7.1 of the Local Rules of Civil Procedure (“LRCiv”). Examples of different 21 types of complaints demonstrating the proper form can be found in the appendix of forms 22 that is contained with the Federal Rules of Civil Procedure (forms 11–21). 23 Within thirty (30) days from the date of entry of this Order, Plaintiff may submit an 24 amended complaint. Plaintiff must clearly designate on the face of the document that it is 25 the “Second Amended Complaint.” The second amended complaint must be retyped or 26 rewritten in its entirety and may not incorporate any part of the original Complaint by 27 reference. 28 1 IV. Warning 2 Plaintiff is advised that if he elects to file an amended complaint but fails to comply 3 || with the Court’s instructions explained in this Order, the action will be dismissed pursuant 4|| to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure. 5|| See McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir. 1996) (affirming dismissal with 6 || prejudice of amended complaint that did not comply with Rule 8(a)). If Plaintiff fails to || prosecute this action, or if he fails to comply with the rules or any court order, the Court 8 || may dismiss the action with prejudice pursuant to Rule 41(b) of the Federal Rule of Civil 9|| Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); see also Ghazali 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 Michael Anthony Fariss-Borello, No. CV-18-04852-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 City of Scottsdale,

13 Defendant. 14 15 Defendant City of Scottsdale filed a Motion to Dismiss for Failure to State a Claim. 16 (Doc. 10). Prior to the motion, however, the Complaint was never screened, as required by 17 28 U.S.C. § 1915(e)(2)(B). Previously, Plaintiff Michael Fariss-Borello (“Plaintiff”) filed 18 an Application for Leave to Proceed In Forma Pauperis, which the Court granted. (Docs. 19 2, 8). The Court will conduct that screening now, dismiss the Complaint (Doc. 1, 20 “Complaint”) with leave to amend, and deny Defendant’s Motion as moot. 21 I. Legal Standards 22 The Court must review the complaint to determine whether the action: 23 (i) is frivolous or malicious; 24 (ii) fails to state a claim on which relief may be granted; or 25 (iii) seeks monetary relief against a defendant who is immune from such relief. 26 28 U.S.C. § 1915(e)(2)(B). Additionally, Rule 8(a) of the Federal Rules of Civil Procedure 27 requires that: 28 A pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim, or third-party 1 claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless 2 the court already has jurisdiction and the claim needs no new 3 grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to 4 relief, and (3) a demand for judgment for the relief the pleader 5 seeks. Relief in the alternative or of several different types may be demanded. 6 7 While Rule 8 does not demand detailed factual allegations, “it demands more than 8 an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 9 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported 10 by mere conclusory statements, do not suffice.” Id. A complaint “must contain sufficient 11 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. 12 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible 13 “when the plaintiff pleads factual content that allows the court to draw the reasonable 14 inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 15 U.S. at 556). A complaint that provides “labels and conclusions” or “a formulaic recitation 16 of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor will a 17 complaint suffice if it presents nothing more than “naked assertions” without “further 18 factual enhancement.” Id. at 557. 19 II. Statutory Screening 20 The basis for the complaint is difficult to decipher, but it appears Plaintiff is 21 attempting to file a claim under 18 U.S.C. § 371—Conspiracy to commit offense or to 22 defraud the United States. (Complaint at 1). Plaintiff cites that statute in the “Jurisdiction” 23 portion of the complaint. (Complaint at 1). Among other things, the Complaint mentions 24 the Scottsdale Police Department asking him about a neighbor who was applying to be an 25 FBI agent, which the Office of Scottsdale Mayor Jim Lane told him was a federal program. 26 He demands $50 million. (Complaint at 4). 27 The statute Plaintiff cites is a criminal statute. 18 U.S.C. § 371 (“If two or more 28 persons conspire either to commit any offense against the United States, or to defraud the 1 United States, or any agency thereof in any manner or for any purpose, and one or more of 2 such persons do any act to effect the object of the conspiracy, each shall be fined under this 3 title or imprisoned not more than five years, or both.”). Criminal statutes, however, “do not 4 convey a private right of action.” Rockefeller v. U.S. Court of Appeals Office, for Tenth 5 Circuit Judges, 248 F. Supp. 2d 17, 23 (D.D.C. 2003); see Fiorno v. Turner, 476 F. Supp. 6 962, 963 (D. Mass. 1979) ([P]laintiff has failed to cite, and the court has been unable to 7 locate, any authority which would support implying a civil cause of action for violations 8 of [18 U.S.C. § 371].”). Therefore, Plaintiff has failed to state a claim on which relief can 9 be granted. 10 III. Leave to Amend 11 In accordance with the well-settled law in this Circuit, however, because “it is not 12 ‘absolutely clear’ that [Plaintiff] could not cure [the Complaint’s] deficiencies by 13 amendment,” the Court will give him the opportunity to do so. Jackson v. Barnes, 749 F.3d 14 755, 767 (9th Cir. 2014); see Fed. R. Civ. P. 15(a)(2) (leave to amend should be “freely” 15 given “when justice so requires[]”); Lopez v. Smith, 203 F.3d 112, 1131 (9th Cir. 2000) (en 16 banc) (holding that a pro se litigant must be given leave to amend his complaint “if it 17 appears at all possible that the plaintiff can correct the defect” in the complaint) (internal 18 quotation marks and citations omitted). Plaintiff’s complaint must be amended to address 19 the deficiencies identified above. Plaintiff’s amended complaint should follow the form 20 detailed in Rule 7.1 of the Local Rules of Civil Procedure (“LRCiv”). Examples of different 21 types of complaints demonstrating the proper form can be found in the appendix of forms 22 that is contained with the Federal Rules of Civil Procedure (forms 11–21). 23 Within thirty (30) days from the date of entry of this Order, Plaintiff may submit an 24 amended complaint. Plaintiff must clearly designate on the face of the document that it is 25 the “Second Amended Complaint.” The second amended complaint must be retyped or 26 rewritten in its entirety and may not incorporate any part of the original Complaint by 27 reference. 28 1 IV. Warning 2 Plaintiff is advised that if he elects to file an amended complaint but fails to comply 3 || with the Court’s instructions explained in this Order, the action will be dismissed pursuant 4|| to section 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure. 5|| See McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir. 1996) (affirming dismissal with 6 || prejudice of amended complaint that did not comply with Rule 8(a)). If Plaintiff fails to || prosecute this action, or if he fails to comply with the rules or any court order, the Court 8 || may dismiss the action with prejudice pursuant to Rule 41(b) of the Federal Rule of Civil 9|| Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (affirming dismissal when based on a □□□□□□□□□□□ 11 || failure to follow a Nevada district court local rule requiring him to file a memorandum of 12 || points and authorities in opposition to a motion). 13 Accordingly, 14 IT IS ORDERED that Plaintiff's First Amended Complaint (Doc. 8) is dismissed 15 || with leave to file a Second Amended Complaint within thirty (30) days of the date this 16|| Order is entered; 17 IT IS FURTHER ORDERED that if Plaintiff does not file a Second Amended 18 || Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court shall dismiss this action without further order of this Court; and 20 IT IS FURTHER ORDERED that if Plaintiff elects to file a Second Amended 21 || Complaint, it may not be served until and unless the Court issues an Order screening the 22 || amended complaint pursuant to 28 U.S.C. § 1915(e)(2); 23 IT IS FURTHER ORDERED DENYING Defendant’s Motion to Dismiss (Doc. || 10) as moot. 25 Dated this 11th day of September, 2019. 26 _ 27 _ — ss > 28 > fonorable Susan M, Brovich United States District Judge -4-

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