1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Bernard Thomas Henry, Jr., No. CV-23-00142-TUC-RCC
10 Plaintiff, ORDER
11 v.
12 Gia Bartlett-Tucker, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Bernard Thomas Henry Jr.'s Complaint (Doc. 16 1) and Application to Proceed in Forma Pauperis ("IFP Application") (Doc. 2). Also 17 pending is Plaintiff's Motion to Allow Electronic Filing by a Party Appearing Without an 18 Attorney (Doc. 3) and his Motion to Hold Deposition and Secure Document (Doc. 6). 19 I. IFP Application 20 A party who files an action in federal district court must generally pay a filing fee. 21 28 U.S.C. § 1914(a). However, indigent plaintiffs may apply for a fee waiver. 28 U.S.C. 22 § 1915. A court must determine whether the litigant is unable to pay the filing fee before 23 granting leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1). Here, the Court 24 has reviewed Plaintiff's IFP Application (Doc. 2) and, good cause appearing, will grant 25 leave to proceed in forma pauperis. 26 II. Statutory Screening of IFP Complaint 27 A district court must screen and dismiss a complaint, or any portion of a 28 complaint, filed in forma pauperis that "is frivolous, malicious, or fails to state a claim 1 upon which relief may be granted; or seeks monetary relief from a defendant who is 2 immune from such relief." 28 U.S.C. § 1915A(b)(1)–(2). The district court applies the 3 same standard that is applied to a Federal Rule of Civil Procedure 12(b)(6) motion to 4 dismiss. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Thus, the complaint 5 must include a "short and plain statement of the claim showing that the pleader is entitled 6 to relief." Fed. R. Civ. P. 8(a)(2). The pleading standard does not demand "'detailed 7 factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully- 8 harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 10 To meet this standard, "a complaint must contain sufficient factual matter, 11 accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting 12 Twombly, 550 U.S. at 570). A claim to relief is only plausible "when the plaintiff pleads 13 factual content that allows the court to draw the reasonable inference that the defendant is 14 liable for the misconduct alleged." Id. Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. 15 The Court "construe[s] pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 16 (9th Cir. 2010). A "complaint [filed by a pro se litigant] 'must be held to less stringent 17 standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 18 551 U.S. 89, 94 (2007)). 19 III. Plaintiff's Complaint 20 This lawsuit appears to stem from two eviction proceedings against Plaintiff in the 21 Pima County Consolidated Justice Court. (Doc. 1 at 4.) It is difficult to discern the facts, 22 but it does seem Plaintiff alleges that the owner of the property, Cynthia Daly, and her 23 attorney, Christopher Jeffery, committed fraud by bringing an eviction action although 24 Plaintiff did not have a lease with Daly. (See id. at 4–7.) In his narrative, Plaintiff uses 25 terms like "fraud," "libalous [sic] slander," "defimatition [sic]," "neglagent [sic] care," 26 "biased unequal," "violated the plaintffs riight [sic] under the law be held libalous [sic]," 27 and cites to Federal Rule of Civil Procedure 11, and 18 U.S.C. §§ 1341 (mail fraud), 941 28 (RICO), 1343 (wire and radio fraud). (Id. at 6–7.) It also appears Plaintiff is bringing this 1 claim in federal court on the basis of diversity jurisdiction because he lists out the 2 residency of the parties. (Id. at 6.) 3 IV. Discussion 4 There are a number of reasons the Court will dismiss Plaintiff's Complaint. First, 5 the Court lacks jurisdiction to directly review state court judgments including eviction 6 proceedings. See Park v. Wells Fargo Bank NA, No. CV-18-03039-PHX-SMB, 2019 WL 7 2212149, at *2 (D. Ariz. Jan. 11, 2019) (citing Noel v . Hall, 341 F.3d 1148, 1154 (9th 8 Cir. 2003)). Plaintiff's Complaint, in effect, seeks to appeal the final judgment on his 9 eviction. 10 Second, Plaintiff has not sufficiently alleged that a federal law applies for federal 11 question jurisdiction. As a private party, Plaintiff cannot bring a civil lawsuit alleging 12 violations of federal criminal statutes. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th 13 Cir. 1980) (explaining that criminal provisions of Title 18 of the U.S. Code "provide no 14 basis for civil liability" because they are prosecuted by the government in the name of the United States). Furthermore, Federal Rule of Civil Procedure 11 is inapplicable even if it 15 did provide an independent basis for a claim because the proceedings in question did not 16 occur in federal court and the Federal Rules of Civil Procedure were not relevant. 17 Third, even if the Court were to assume that Plaintiff sought to allege a state law 18 claim under common law fraud, negligence, defamation, libel, or slander, Plaintiff has 19 not sufficiently alleged that complete diversity exists for diversity jurisdiction. The Court 20 has diversity jurisdiction over a civil action "where the matter in controversy exceeds the 21 sum or value of $75,000 . . . and is between . . . citizens of different States[.]" 28 U.S.C. § 22 1332(a). A case may only be heard in federal court where there is complete diversity such 23 that the [state] citizenship of each plaintiff is different from that of each defendant. See 24 id.; Hunter v. Phillip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). An individual's 25 state of citizenship is determined by their domicile. Kanter v. Warner-Lambert Co., 265 26 F.3d 853, 857 (9th Cir. 2001). A person's domicile is their place of permanent physical 27 residence where that person resides with the intent to remain. Lew 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 Bernard Thomas Henry, Jr., No. CV-23-00142-TUC-RCC
10 Plaintiff, ORDER
11 v.
12 Gia Bartlett-Tucker, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Bernard Thomas Henry Jr.'s Complaint (Doc. 16 1) and Application to Proceed in Forma Pauperis ("IFP Application") (Doc. 2). Also 17 pending is Plaintiff's Motion to Allow Electronic Filing by a Party Appearing Without an 18 Attorney (Doc. 3) and his Motion to Hold Deposition and Secure Document (Doc. 6). 19 I. IFP Application 20 A party who files an action in federal district court must generally pay a filing fee. 21 28 U.S.C. § 1914(a). However, indigent plaintiffs may apply for a fee waiver. 28 U.S.C. 22 § 1915. A court must determine whether the litigant is unable to pay the filing fee before 23 granting leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1). Here, the Court 24 has reviewed Plaintiff's IFP Application (Doc. 2) and, good cause appearing, will grant 25 leave to proceed in forma pauperis. 26 II. Statutory Screening of IFP Complaint 27 A district court must screen and dismiss a complaint, or any portion of a 28 complaint, filed in forma pauperis that "is frivolous, malicious, or fails to state a claim 1 upon which relief may be granted; or seeks monetary relief from a defendant who is 2 immune from such relief." 28 U.S.C. § 1915A(b)(1)–(2). The district court applies the 3 same standard that is applied to a Federal Rule of Civil Procedure 12(b)(6) motion to 4 dismiss. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Thus, the complaint 5 must include a "short and plain statement of the claim showing that the pleader is entitled 6 to relief." Fed. R. Civ. P. 8(a)(2). The pleading standard does not demand "'detailed 7 factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully- 8 harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 10 To meet this standard, "a complaint must contain sufficient factual matter, 11 accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting 12 Twombly, 550 U.S. at 570). A claim to relief is only plausible "when the plaintiff pleads 13 factual content that allows the court to draw the reasonable inference that the defendant is 14 liable for the misconduct alleged." Id. Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. 15 The Court "construe[s] pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 16 (9th Cir. 2010). A "complaint [filed by a pro se litigant] 'must be held to less stringent 17 standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 18 551 U.S. 89, 94 (2007)). 19 III. Plaintiff's Complaint 20 This lawsuit appears to stem from two eviction proceedings against Plaintiff in the 21 Pima County Consolidated Justice Court. (Doc. 1 at 4.) It is difficult to discern the facts, 22 but it does seem Plaintiff alleges that the owner of the property, Cynthia Daly, and her 23 attorney, Christopher Jeffery, committed fraud by bringing an eviction action although 24 Plaintiff did not have a lease with Daly. (See id. at 4–7.) In his narrative, Plaintiff uses 25 terms like "fraud," "libalous [sic] slander," "defimatition [sic]," "neglagent [sic] care," 26 "biased unequal," "violated the plaintffs riight [sic] under the law be held libalous [sic]," 27 and cites to Federal Rule of Civil Procedure 11, and 18 U.S.C. §§ 1341 (mail fraud), 941 28 (RICO), 1343 (wire and radio fraud). (Id. at 6–7.) It also appears Plaintiff is bringing this 1 claim in federal court on the basis of diversity jurisdiction because he lists out the 2 residency of the parties. (Id. at 6.) 3 IV. Discussion 4 There are a number of reasons the Court will dismiss Plaintiff's Complaint. First, 5 the Court lacks jurisdiction to directly review state court judgments including eviction 6 proceedings. See Park v. Wells Fargo Bank NA, No. CV-18-03039-PHX-SMB, 2019 WL 7 2212149, at *2 (D. Ariz. Jan. 11, 2019) (citing Noel v . Hall, 341 F.3d 1148, 1154 (9th 8 Cir. 2003)). Plaintiff's Complaint, in effect, seeks to appeal the final judgment on his 9 eviction. 10 Second, Plaintiff has not sufficiently alleged that a federal law applies for federal 11 question jurisdiction. As a private party, Plaintiff cannot bring a civil lawsuit alleging 12 violations of federal criminal statutes. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th 13 Cir. 1980) (explaining that criminal provisions of Title 18 of the U.S. Code "provide no 14 basis for civil liability" because they are prosecuted by the government in the name of the United States). Furthermore, Federal Rule of Civil Procedure 11 is inapplicable even if it 15 did provide an independent basis for a claim because the proceedings in question did not 16 occur in federal court and the Federal Rules of Civil Procedure were not relevant. 17 Third, even if the Court were to assume that Plaintiff sought to allege a state law 18 claim under common law fraud, negligence, defamation, libel, or slander, Plaintiff has 19 not sufficiently alleged that complete diversity exists for diversity jurisdiction. The Court 20 has diversity jurisdiction over a civil action "where the matter in controversy exceeds the 21 sum or value of $75,000 . . . and is between . . . citizens of different States[.]" 28 U.S.C. § 22 1332(a). A case may only be heard in federal court where there is complete diversity such 23 that the [state] citizenship of each plaintiff is different from that of each defendant. See 24 id.; Hunter v. Phillip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). An individual's 25 state of citizenship is determined by their domicile. Kanter v. Warner-Lambert Co., 265 26 F.3d 853, 857 (9th Cir. 2001). A person's domicile is their place of permanent physical 27 residence where that person resides with the intent to remain. Lew v. Moss, 797 F.2d 747, 28 749–50 (9th Cir. 1986). Plaintiff states in his Complaint that he is a resident of Tucson, 1 Arizona and Defendants Jeffery and Edward L. Bartlett are also residents of Tucson, 2 Arizona. (Doc. 1 at 6.) This defeats diversity. 3 Finally, Plaintiff's blank assertions that Defendants committed fraud, defamation, 4 libel, slander, or negligence are not enough to survive the pleading stage. Unfortunately, 5 devoid of context or explanation, they are precisely the threadbare declarations that 6 prevent the Court from being able to make a reasonable inference that Plaintiff has pled a 7 plausible claim for relief. 8 V. Leave to Amend 9 If the district court determines that a pleading might be cured by the allegation of 10 other facts, a pro se litigant is entitled to an opportunity to amend a complaint before 11 dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000) (en 12 banc). The Court evaluates whether to permit amendment by weighing "(1) bad faith; (2) 13 undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) 14 whether plaintiff has previously amended his complaint." W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). "Leave to amend need not be given if a 15 complaint, as amended, is subject to dismissal." Moore v. Kayport Package Express, Inc., 16 885 F.2d 531, 538 (9th Cir. 1989). 17 The Court declines to permit Plaintiff leave to amend his Complaint. Although 18 there is no reason to believe Plaintiff brought this action in bad faith, nor that undue delay 19 or prejudice would result from amendment, amendment does appear to be futile given the 20 deficiencies the Court previously outlined. Even if Plaintiff were to provide additional 21 facts, the Court does not believe he can establish jurisdiction, and any Amended 22 Complaint would likely be subject to dismissal. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 VI. Conclusion 2 Accordingly, IT IS ORDERED that 3 (1) Plaintiff's IFP Application is GRANTED. (Doc. 2.) 4 (2) Plaintiff's Complaint is DISMISSED WITH PREJUDICE. (Doc. 1.) 5 (3) Plaintiff's Motion to Allow Electronic Filing is DENIED AS MOOT. 6 (Doc. 3.) 7 (4) Plaintiff's Motion to Hold Deposition and Secure Document is DENIED 8 AS MOOT. (Doc. 6.) 9 Dated this 4th day of April, 2023. 10 11 12 f 7 Dp 13 f Honorable Raner ©. Collins 14 merior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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