1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Robert Howarth, No. CV-21-02054-PHX-ESW
10 Plaintiff, ORDER
11 v.
12 United States Marshal Service,
13 Defendant. 14 15 On Dec. 6, 2021, Plaintiff filed a pro se Complaint alleging discrimination (Doc. 1). 16 Plaintiff also filed an Application to Proceed in District Court Without Prepaying Fees or 17 Costs (Doc. 2). The case was assigned to a Magistrate Judge. 18 On January 6, 2022, the Court issued an Order directing the Plaintiff to show cause 19 no later than January 20, 2022 why he should not be sanctioned or held in contempt of 20 court pursuant to title 18 U.S.C. § 401 for failing to comply with Rule 3.7(b) of the Local 21 Rules of Civil Procedure by failing to timely file a written Consent form indicating his 22 election that the case be assigned to a District Judge or his consent to Magistrate Judge 23 jurisdiction pursuant to 28 U.S.C. § 636(c)(2) and Fed. R. Civ. P. 73(b). (Doc. 5 at 2). The 24 Order was mailed to the Plaintiff at his address of record. The Plaintiff did not respond, 25 and the time to do so has passed. The Order was not returned to sender. 26 A. Application to Proceed in District Court Without Prepaying Fees or Costs 27 (Doc. 2) 28 The district court may permit indigent litigants to proceed in forma pauperis upon 1 completion of a proper affidavit of indigence. See 28 U.S.C. § 1915(a). In the Application 2 to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), Plaintiff has 3 declared under penalty of perjury that he is unable to pay the filing fee and other costs 4 associated with this case. Plaintiff presents financial information to support his application. 5 Given Plaintiff’s lack of income and the absence of any significant assets, Plaintiff has met 6 his burden of proof. The Court finds the Plaintiff to be indigent, and his Application (Doc. 7 2) will be granted. 8 B. Statutory Screening of In Forma Pauperis Complaint Pursuant to 28 9 U.S.C.§ 1915(e)(2) 10 The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims 11 that are legally frivolous or malicious, that fail to state a claim upon which relief may be 12 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 13 U.S.C. § 1915A(b)(1)–(2). A pleading must contain a “short and plain statement of the 14 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis 15 added). While Rule 8 does not demand detailed factual allegations, “it demands more than 16 an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 17 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported 18 by mere conclusory statements, do not suffice.” Id. “[A] complaint must contain sufficient 19 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 20 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible 21 “when the plaintiff pleads factual content that allows the court to draw the reasonable 22 inference that the defendant is liable for the misconduct alleged.” Id. “Determining 23 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 24 requires the reviewing court to draw on its judicial experience and common sense.” Id. at 25 679. Thus, although a plaintiff’s specific factual allegations may be consistent with a 26 claim, a court must assess whether there are other “more likely explanations” for a 27 defendant’s conduct. Id. at 681. But as the United States Court of Appeals for the Ninth 28 Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. 1 Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must 2 be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting 3 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 4 If the Court determines that a pleading could be cured by the allegation of other 5 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 6 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). “It 7 is also clear that section 1915(e) not only permits but requires a district court to dismiss an 8 in forma pauperis complaint that fails to state a claim.” Id. at 1127. 9 C. Analysis 10 As a basis for federal jurisdiction, Plaintiff alleges “religious discrimination” with 11 no reference to statutory or other legal authority (Doc.1 at 3). Regarding the amount in 12 controversy, Plaintiff states: “The USA Marshalls service contracts with Centerra of 13 Constellis & on 12/6/2021 this contractor has a person by the name of Todd was rude to 14 me at 401 W. Washinton [sic] at the check in station was not wearing a full face covering 15 at 401 W. Washington St.” (Id. at 4). In his statement of the claim, Plaintiff adds: 16 “Religious Discrimination of me because of my religion of Islam & religious dress of a 17 Muslim (myself) & rude to me, because of my religious Islamic scarf.” (Id.) The 18 Complaint fails to comply with Rule 8, Fed. R. Civ. P. The Complaint form as submitted 19 is not sufficient to state a cause of action against a defendant in U.S. District Court. 20 Plaintiff’s Complaint fails because Plaintiff does not allege any facts or law from which 21 the Court can find that it has subject matter jurisdiction over his case. Nor has Plaintiff 22 stated any facts sufficient to state a claim against the named Defendant for which relief 23 may be granted. Therefore, the Complaint will be dismissed. 24 D. Leave to Amend 25 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 26 a claim upon which relief may be granted. No later than February 22, 2022, Plaintiff may 27 submit a first amended complaint to cure the deficiencies outlined above. Plaintiff must 28 clearly designate on the face of the document that it is the “First Amended Complaint.” A 1 first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 2 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 3 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as 4 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original 5 complaint and that was voluntarily dismissed or was dismissed without prejudice is waived 6 if it is not alleged in a first amended complaint. Lacey v. Maricopa County,
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Robert Howarth, No. CV-21-02054-PHX-ESW
10 Plaintiff, ORDER
11 v.
12 United States Marshal Service,
13 Defendant. 14 15 On Dec. 6, 2021, Plaintiff filed a pro se Complaint alleging discrimination (Doc. 1). 16 Plaintiff also filed an Application to Proceed in District Court Without Prepaying Fees or 17 Costs (Doc. 2). The case was assigned to a Magistrate Judge. 18 On January 6, 2022, the Court issued an Order directing the Plaintiff to show cause 19 no later than January 20, 2022 why he should not be sanctioned or held in contempt of 20 court pursuant to title 18 U.S.C. § 401 for failing to comply with Rule 3.7(b) of the Local 21 Rules of Civil Procedure by failing to timely file a written Consent form indicating his 22 election that the case be assigned to a District Judge or his consent to Magistrate Judge 23 jurisdiction pursuant to 28 U.S.C. § 636(c)(2) and Fed. R. Civ. P. 73(b). (Doc. 5 at 2). The 24 Order was mailed to the Plaintiff at his address of record. The Plaintiff did not respond, 25 and the time to do so has passed. The Order was not returned to sender. 26 A. Application to Proceed in District Court Without Prepaying Fees or Costs 27 (Doc. 2) 28 The district court may permit indigent litigants to proceed in forma pauperis upon 1 completion of a proper affidavit of indigence. See 28 U.S.C. § 1915(a). In the Application 2 to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), Plaintiff has 3 declared under penalty of perjury that he is unable to pay the filing fee and other costs 4 associated with this case. Plaintiff presents financial information to support his application. 5 Given Plaintiff’s lack of income and the absence of any significant assets, Plaintiff has met 6 his burden of proof. The Court finds the Plaintiff to be indigent, and his Application (Doc. 7 2) will be granted. 8 B. Statutory Screening of In Forma Pauperis Complaint Pursuant to 28 9 U.S.C.§ 1915(e)(2) 10 The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims 11 that are legally frivolous or malicious, that fail to state a claim upon which relief may be 12 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 13 U.S.C. § 1915A(b)(1)–(2). A pleading must contain a “short and plain statement of the 14 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis 15 added). While Rule 8 does not demand detailed factual allegations, “it demands more than 16 an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 17 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported 18 by mere conclusory statements, do not suffice.” Id. “[A] complaint must contain sufficient 19 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 20 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible 21 “when the plaintiff pleads factual content that allows the court to draw the reasonable 22 inference that the defendant is liable for the misconduct alleged.” Id. “Determining 23 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 24 requires the reviewing court to draw on its judicial experience and common sense.” Id. at 25 679. Thus, although a plaintiff’s specific factual allegations may be consistent with a 26 claim, a court must assess whether there are other “more likely explanations” for a 27 defendant’s conduct. Id. at 681. But as the United States Court of Appeals for the Ninth 28 Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. 1 Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must 2 be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting 3 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 4 If the Court determines that a pleading could be cured by the allegation of other 5 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 6 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). “It 7 is also clear that section 1915(e) not only permits but requires a district court to dismiss an 8 in forma pauperis complaint that fails to state a claim.” Id. at 1127. 9 C. Analysis 10 As a basis for federal jurisdiction, Plaintiff alleges “religious discrimination” with 11 no reference to statutory or other legal authority (Doc.1 at 3). Regarding the amount in 12 controversy, Plaintiff states: “The USA Marshalls service contracts with Centerra of 13 Constellis & on 12/6/2021 this contractor has a person by the name of Todd was rude to 14 me at 401 W. Washinton [sic] at the check in station was not wearing a full face covering 15 at 401 W. Washington St.” (Id. at 4). In his statement of the claim, Plaintiff adds: 16 “Religious Discrimination of me because of my religion of Islam & religious dress of a 17 Muslim (myself) & rude to me, because of my religious Islamic scarf.” (Id.) The 18 Complaint fails to comply with Rule 8, Fed. R. Civ. P. The Complaint form as submitted 19 is not sufficient to state a cause of action against a defendant in U.S. District Court. 20 Plaintiff’s Complaint fails because Plaintiff does not allege any facts or law from which 21 the Court can find that it has subject matter jurisdiction over his case. Nor has Plaintiff 22 stated any facts sufficient to state a claim against the named Defendant for which relief 23 may be granted. Therefore, the Complaint will be dismissed. 24 D. Leave to Amend 25 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 26 a claim upon which relief may be granted. No later than February 22, 2022, Plaintiff may 27 submit a first amended complaint to cure the deficiencies outlined above. Plaintiff must 28 clearly designate on the face of the document that it is the “First Amended Complaint.” A 1 first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 2 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 3 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as 4 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original 5 complaint and that was voluntarily dismissed or was dismissed without prejudice is waived 6 if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 7 928 (9th Cir. 2012) (en banc). If Plaintiff files an amended complaint, Plaintiff must write 8 short, plain statements telling the Court: (1) the law Plaintiff believes Defendant did not 9 follow; (2) the name of the Defendant who Plaintiff is suing; (3) exactly what that 10 Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected 11 to the violation of Plaintiff’s rights; and (5) what specific injury Plaintiff suffered because 12 of that Defendant’s conduct and the relief Plaintiff seeks. See Rizzo v. Goode, 423 U.S. 13 362, 377 (1976). Plaintiff must repeat this process for each person or entity he names as a 14 Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant 15 with the specific injury suffered by Plaintiff, the allegations against that Defendant will be 16 dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of 17 Defendants has violated a right are not acceptable and will be dismissed. 18 Plaintiff must also allege subject matter jurisdiction by either showing his claim 19 involves a controversy between citizens of different states, and the amount in controversy 20 exceeds $75,000, or a question of federal law, identifying the specific claim and what 21 statute or law applies, if any. 22 E. Possible Dismissal 23 If Plaintiff fails to timely comply with every provision of this Order, the Court may 24 dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court 25 may dismiss an action for failure to comply with any order of the Court). 26 F. Conclusion 27 For the reasons set forth herein,
28 2 IT IS ORDERED granting Plaintiff's Application to Proceed in District Court 3 || Without Prepaying Fees or Costs (Doc. 2). 4 IT IS FURTHER ORDERED that if Plaintiff Robert Howarth fails to file the 5 || appropriate election form by 5:00 p.m. on February 15, 2022, Plaintiff Robert Howarth 6|| shall telephonically appear before Magistrate Judge Eileen S. Willett of the Phoenix Division of this Court by calling 1-866-390-1828 and entering passcode 9558982# on || March 2, 2022 at 10:00 a.m. and show good cause for his failure to comply with Local Rule 3.7(b). The show cause hearing before the Magistrate Judge will be automatically 10 || vacated and the Plaintiff need not telephonically appear if the Plaintiff files a completed 11 || election form by the 5:00 p.m. February 15, 2022. The Clerk of Court shall mail to the || Plaintiff at his address of record a third election form. 13 IT IS FURTHER ORDERED that Plaintiffs Complaint is dismissed with permission to file a First Amended Complaint no later than February 22, 2022. If Plaintiff 15 || does not timely file a First Amended Complaint, the case will be dismissed with prejudice. 16 IT IS FURTHER ORDERED that if Plaintiff elects to file a First Amended 17 |} Complaint, he shall not serve it on Defendant until and unless the Court screens the First 18 || Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2). If and when the Court gives Plaintiff leave to serve a First Amended Complaint, Plaintiff shall be responsible for 20 || service and may do so by request for waiver under Federal Rule of Civil Procedure 4. 21 Dated this 26th day of January, 2022. 22
24 Honorable Eileen S. Willett 5 United States Magistrate Judge 26 27 28
_5-