1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kathleen Kendrick, No. CV-21-0132-TUC-BGM
10 Plaintiff, ORDER 11 v. 12 Lupin Pharmaceuticals, 13 Defendant. 14 On March 29, 2021, Plaintiff Kathleen Kendrick filed a pro se Complaint (Doc. 1) 15 alleging that she “became ill in late January 2020 while taking Metformin ER[,]” and 16 then the following July she “received a letter from Walgreens pharmacy telling [her] that 17 [she] received recalled medication from Lupin that contained high amounts of NDMA a 18 carcinogen[][.]” Compl. (Doc. 1) at 4. Plaintiff did not immediately pay the $402.00 19 civil action filing fee but filed an Application to Proceed in District Court Without 20 Prepaying Fees or Costs (Doc. 2). 21 22 I. APPLICATION TO PROCEED IN FORMA PAUPERIS 23 The Court may allow a plaintiff to proceed without prepayment of fees when it is 24 shown by affidavit that she “is unable to pay such fees[.]” 28 U.S.C. § 1915(a)(1). 25 Plaintiff’s statement, made under penalty of perjury, establishes that Plaintiff is without 26 earned income and no assets. The Court finds Plaintiff is unable to pay the fees. The 27 Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) will 28 be granted. 1 2 II. STATUTORY SCREENING OF PLAINTIFF’S COMPLAINT 3 This Court is required to dismiss a case if the Court determines that the allegation 4 of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action 5 “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or 6 (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 7 U.S.C. § 1915(e)(2)(B). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not demand 10 detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 12 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements, do not suffice.” Id. Where the pleader is pro 14 se, however, the pleading should be liberally construed in the interests of justice. 15 Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975); see also Hebbe v. Pliler, 627 16 F.3d 338, 342 (9th Cir. 2010). Nonetheless, a complaint must set forth a set of facts that 17 serves to put defendants on notice as to the nature and basis of the claim(s). See Brazil v. 18 U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). 19 A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent standards 20 than formal pleadings drafted by lawyers.’” Hebbe, 627 F.3d at 342 (quoting Erickson v. 21 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “Rule 8(a)’s simplified pleading standard 22 applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 23 U.S. 506, 513, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002). “Given the Federal Rules’ 24 simplified standard for pleading, ‘[a] court may dismiss a complaint only if it is clear that 25 no relief could be granted under any set of facts that could be proved consistent with the 26 allegations.’” Id. at 514, 122 S.Ct. at 998 (quoting Hison v. King & Spaulding, 467 U.S. 27 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)) (alterations in original); see also Johnson, 28 et al. v. City of Shelby, Mississippi, — U.S. —, 135 S.Ct. 346, 346 (2014) (“Federal 1 pleading rules call for ‘a short and plain statement of the claim showing that the pleader 2 is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a 3 complaint for imperfect statement of the legal theory supporting the claim asserted”). 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). The 7 Court should not, however, advise the litigant how to cure the defects. This type of 8 advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v. 9 Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to 10 decide whether the court was required to inform a litigant of deficiencies). 11 12 III. COMPLAINT 13 Plaintiff’s Complaint alleges that she “became ill in late January 2020 while taking 14 Metformin ER[,]” and then the following July she “received a letter from Walgreens 15 pharmacy telling [her] that [she] received recalled medication from Lupin that contained 16 high amounts of NDMA a carcinogen[][.]” Compl. (Doc. 1) at 4. Plaintiff seeks ten 17 million dollars. Id. at 4–5. 18 19 IV. FAILURE TO STATE A CLAIM 20 A. Insufficient Factual Basis 21 Plaintiff’s Complaint (Doc. 1) does not contain any facts beyond mere allegations 22 that she suffered an injury. Such “the-defendant-unlawfully-harmed-me” accusations are 23 insufficient to state a claim under Rule 8, Federal Rules of Civil Procedure. Ashcroft v. 24 Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Additionally, 25 Plaintiff’s vague allegations are directed only at Lupin Pharmaceuticals. See Compl. 26 (Doc. 1). In her attachments to the Complaint (Doc. 1), Plaintiff mentions that she “ha[s] 27 been informed that Lupin also contracts out and that there were other recalls from varies 28 [sic] companies on the same medication” and lists other pharmaceutical companies. 1 Plaintiff did not name any of these companies in her suit, and her complaint is devoid of 2 any allegations of wrongdoing as to these entities, but her purpose for mentioning them at 3 all is unclear. Based on the foregoing, the Court finds Plaintiff’s Complaint (Doc. 1) fails 4 to provide sufficient detail to put defendant on notice as to the nature and basis of her 5 claims. See Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Accordingly, 6 Plaintiff’s Complaint (Doc. 1) will be dismissed with leave to amend. 7 8 V. WARNINGS 9 A. Rules of Court 10 Plaintiff shall familiarize herself with the Federal Rules of Civil Procedure and 11 Local Rules for the District of Arizona, both of which can be found on the Court’s web 12 site at www.azd.uscourts.gov. Plaintiff is advised that a Handbook for Self-Represented 13 Litigants is available on the Court’s website at: http://www.azd.uscourts.gov/handbook- 14 self-represented-litigants. In addition, Step Up to Justice offers a free, advice-only clinic 15 for self-represented civil litigants on Thursdays. If Plaintiff wishes to schedule a clinic 16 appointment, she should contact the courthouse librarian, Mary Ann O’Neil, at 17 MaryAnn_O’Neil@LB9.uscourts.gov. 18 B.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kathleen Kendrick, No. CV-21-0132-TUC-BGM
10 Plaintiff, ORDER 11 v. 12 Lupin Pharmaceuticals, 13 Defendant. 14 On March 29, 2021, Plaintiff Kathleen Kendrick filed a pro se Complaint (Doc. 1) 15 alleging that she “became ill in late January 2020 while taking Metformin ER[,]” and 16 then the following July she “received a letter from Walgreens pharmacy telling [her] that 17 [she] received recalled medication from Lupin that contained high amounts of NDMA a 18 carcinogen[][.]” Compl. (Doc. 1) at 4. Plaintiff did not immediately pay the $402.00 19 civil action filing fee but filed an Application to Proceed in District Court Without 20 Prepaying Fees or Costs (Doc. 2). 21 22 I. APPLICATION TO PROCEED IN FORMA PAUPERIS 23 The Court may allow a plaintiff to proceed without prepayment of fees when it is 24 shown by affidavit that she “is unable to pay such fees[.]” 28 U.S.C. § 1915(a)(1). 25 Plaintiff’s statement, made under penalty of perjury, establishes that Plaintiff is without 26 earned income and no assets. The Court finds Plaintiff is unable to pay the fees. The 27 Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) will 28 be granted. 1 2 II. STATUTORY SCREENING OF PLAINTIFF’S COMPLAINT 3 This Court is required to dismiss a case if the Court determines that the allegation 4 of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action 5 “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or 6 (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 7 U.S.C. § 1915(e)(2)(B). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not demand 10 detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 12 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements, do not suffice.” Id. Where the pleader is pro 14 se, however, the pleading should be liberally construed in the interests of justice. 15 Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975); see also Hebbe v. Pliler, 627 16 F.3d 338, 342 (9th Cir. 2010). Nonetheless, a complaint must set forth a set of facts that 17 serves to put defendants on notice as to the nature and basis of the claim(s). See Brazil v. 18 U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). 19 A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent standards 20 than formal pleadings drafted by lawyers.’” Hebbe, 627 F.3d at 342 (quoting Erickson v. 21 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “Rule 8(a)’s simplified pleading standard 22 applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 23 U.S. 506, 513, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002). “Given the Federal Rules’ 24 simplified standard for pleading, ‘[a] court may dismiss a complaint only if it is clear that 25 no relief could be granted under any set of facts that could be proved consistent with the 26 allegations.’” Id. at 514, 122 S.Ct. at 998 (quoting Hison v. King & Spaulding, 467 U.S. 27 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)) (alterations in original); see also Johnson, 28 et al. v. City of Shelby, Mississippi, — U.S. —, 135 S.Ct. 346, 346 (2014) (“Federal 1 pleading rules call for ‘a short and plain statement of the claim showing that the pleader 2 is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a 3 complaint for imperfect statement of the legal theory supporting the claim asserted”). 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). The 7 Court should not, however, advise the litigant how to cure the defects. This type of 8 advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v. 9 Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to 10 decide whether the court was required to inform a litigant of deficiencies). 11 12 III. COMPLAINT 13 Plaintiff’s Complaint alleges that she “became ill in late January 2020 while taking 14 Metformin ER[,]” and then the following July she “received a letter from Walgreens 15 pharmacy telling [her] that [she] received recalled medication from Lupin that contained 16 high amounts of NDMA a carcinogen[][.]” Compl. (Doc. 1) at 4. Plaintiff seeks ten 17 million dollars. Id. at 4–5. 18 19 IV. FAILURE TO STATE A CLAIM 20 A. Insufficient Factual Basis 21 Plaintiff’s Complaint (Doc. 1) does not contain any facts beyond mere allegations 22 that she suffered an injury. Such “the-defendant-unlawfully-harmed-me” accusations are 23 insufficient to state a claim under Rule 8, Federal Rules of Civil Procedure. Ashcroft v. 24 Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Additionally, 25 Plaintiff’s vague allegations are directed only at Lupin Pharmaceuticals. See Compl. 26 (Doc. 1). In her attachments to the Complaint (Doc. 1), Plaintiff mentions that she “ha[s] 27 been informed that Lupin also contracts out and that there were other recalls from varies 28 [sic] companies on the same medication” and lists other pharmaceutical companies. 1 Plaintiff did not name any of these companies in her suit, and her complaint is devoid of 2 any allegations of wrongdoing as to these entities, but her purpose for mentioning them at 3 all is unclear. Based on the foregoing, the Court finds Plaintiff’s Complaint (Doc. 1) fails 4 to provide sufficient detail to put defendant on notice as to the nature and basis of her 5 claims. See Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Accordingly, 6 Plaintiff’s Complaint (Doc. 1) will be dismissed with leave to amend. 7 8 V. WARNINGS 9 A. Rules of Court 10 Plaintiff shall familiarize herself with the Federal Rules of Civil Procedure and 11 Local Rules for the District of Arizona, both of which can be found on the Court’s web 12 site at www.azd.uscourts.gov. Plaintiff is advised that a Handbook for Self-Represented 13 Litigants is available on the Court’s website at: http://www.azd.uscourts.gov/handbook- 14 self-represented-litigants. In addition, Step Up to Justice offers a free, advice-only clinic 15 for self-represented civil litigants on Thursdays. If Plaintiff wishes to schedule a clinic 16 appointment, she should contact the courthouse librarian, Mary Ann O’Neil, at 17 MaryAnn_O’Neil@LB9.uscourts.gov. 18 B. Amended Complaints 19 An amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 20 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 21 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original Complaint is treated 22 as nonexistent. Ferdik, 963 F.2d at 1262. Thus, grounds for relief alleged in the original 23 Petition that are not alleged in an amended petition are waived. King v. Atiyeh, 814 F.2d 24 565, 567 (9th Cir. 1987). 25 C. Address Changes 26 Plaintiff must file and serve a notice of a change of address in accordance with 27 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 28 for other relief with a notice of change of address. Failure to comply may result in || dismissal of this action. 2 D. Copies 3 Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv. 5.4. Failure to comply may result in the filing being stricken without further □□ notice to Plaintiff. 6 E. Letters to the Judge 7 It is improper for a party to communicate directly with court personnel. Simply 8 || mailing documents to the judge or any other court personnel is inappropriate. Any || request for action by the Court must be in the form of a motion that complies with the || Rules of Practice of the United States District Court for the District of Arizona (the Local 11 || Rules). Any future letters directed to the judge or other court personnel will be stricken || from the record and returned to Plaintiff. 13 F. Possible Dismissal 14 If Plaintiff fails to timely comply with every provision of this Order, including 15 || these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). 18 19} VI. CONCLUSION 20 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) is GRANTED. 22 IT IS FURTHER ORDERED that Plaintiff's Complaint (Doc. 1) is DISMISSED 23 || WITH LEAVE TO AMEND. 24 Dated this 24th day of June, 2021.
26 Honorable Bruce G. Macdonald United States Magistrate Judge 27 28 _5-