Howarth v. Phoenix, City of

• Court: District Court, D. Arizona
• Decided: January 28, 2022
• Docket: 2:21-cv-02053
• Status: Unknown

Opinion

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

9 Robert Howarth, No. CV-21-02053-PHX-SMM-MTM

10 Plaintiff, ORDER

11 v.

12 City of Phoenix,

13 Defendant. 14 15 Plaintiff commenced this civil action with a pro se civil complaint and an 16 application to proceed in District Court without paying fees or costs. (Docs. 1, 2). The 17 Court1 will grant the application. However, the Court will dismiss the complaint for lack

18 1 This case is assigned to a Magistrate Judge. However, not all parties have consented 19 to the jurisdiction of the Magistrate Judge. Thus, the matter is before this Court pursuant to General Order 21-25, which states in relevant part: 20 21 When a United States Magistrate Judge to whom a civil action has been assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be 22 appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1) 23 due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge, 24 25 IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee. 26 IT IS FURTHER ORDERED designating the following District Court 27 Judges to review and, if deemed suitable, to sign the order of dismissal on 28 my behalf: 1 of standing. 2 I. Application to Proceed Without Paying Fees or Costs 3 The Court will grant Plaintiff’s application to proceed in district court without 4 paying fees or costs. 28 U.S.C. § 1915(a). Plaintiff may proceed without payment of the 5 filing fee. 6 II. Statutory Screening of In Forma Pauperis Complaints 7 Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to review complaints 8 brought by all plaintiffs who are proceeding in forma pauperis and must dismiss a 9 complaint, or portion of it, if the plaintiff has raised claims that are legally frivolous or 10 malicious, fail to state a claim upon which relief may be granted, or seek monetary relief 11 from a defendant who is immune from such relief. 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. 25 Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee 26 Though General Order 21-25 requires the Magistrate Judge to prepare a 27 Report and Recommendation, the Court deems a Report and Recommendation 28 unnecessary in this case. 1 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 2 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 3 Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less stringent standards 4 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 5 94 (2007)). 6 If the Court determines that a pleading could be cured by the allegation of other 7 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 8 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 9 Plaintiff’s complaint will be dismissed without leave to amend because the defects in his 10 complaint cannot be corrected. 11 III. Complaint 12 Plaintiff names the City of Phoenix as the Defendant in his complaint. Plaintiff 13 alleges the City of Phoenix has not adequately enforced a federal mask requirement. He 14 further alleges he then contracted COVID-19 on a public bus because of Defendant’s lack 15 of enforcement. Plaintiff seeks $10,000,000 in damages, an injunction for the City of 16 Phoenix to immediately enforce the federal mask mandate, and for the City of Phoenix to 17 pay for his medical and dental bulls for rest of his life. 18 IV. Dismissal of Complaint 19 To sustain an action in federal court, a Plaintiff must establish the three elements of 20 constitutional standing: (1) the Plaintiff suffered an injury in fact; (2) the injury is fairly 21 traceable to the challenged conduct of the Defendant; and (3) the injury is likely to be 22 redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 23 (2016). To be “fairly traceable” to Defendant, the injury must be causally linked to the 24 challenged conduct and must not be “the result of misconduct of some third party not before 25 the court.” Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1141 (9th Cir. 2013) (citation 26 omitted). “The line of causation between the defendant’s action and the plaintiff’s harm 27 must be more than attenuated.” Id. (quoting Native Vill. of Kivalina v. ExxonMobile Corp., 28 696 F. 3d 849, 867 (9th Cir. 2012)). 1 Here, Plaintiff's assertion he contracted COVID-19 on a bus under Defendant’s control because Defendant failed to enforce a federal mask mandate is too speculative and 3 || attenuated to establish standing to sue in federal court. COVID-19 has spread pervasively throughout the City of Phoenix, and indeed throughout most of Arizona. Plaintiff is not on 5 || a public bus at all hours of the day every single day, and he very likely could have 6 || contracted COVID-19 from any other interaction through no fault of Defendant’s. In his complaint, Plaintiff does not establish, and will not be able to establish under any standard 8 || of proof, that Defendant’s alleged non-enforcement when he was on a public bus caused 9|| him to contract COVID-19. And in any event, regardless of whether the City of Phoenix 10 || did or did not adequately enforce a federal mask mandate on public buses, Plaintiff could 11 || have still contracted COVID-19 from a non-compliant individual acting on his or her own, || contrary to any federal mandate and despite any local enforcement. Because Plaintiff 13 || cannot establish his alleged injury is fairly traceable to Defendant’s challenged conduct, he lacks standing and this action must be dismissed. See Spokeo, 578 U.S. at 338. 15 IT IS ORDERED Plaintiffs application for leave to proceed in forma pauperis (doc. 2) is GRANTED. 17 IT IS FURTHER ORDERED the complaint (doc 1) is DISMISSED for lack of standing. The Clerk of the Court is directed to terminate this action. 19 Dated this 28th day of January, 2022. 20 21 22 — Lil nora Hdhorable Stephen M. McNamee 23 Senior United States District Judge 24 25 26 27 28

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