Robertson v. Millett

• Court: District Court, D. Arizona
• Decided: February 8, 2022
• Docket: 2:22-cv-00009
• Status: Unknown

Opinion

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

9 Michael Allen Robertson, No. CV-22-00009-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 Lisa Millett, et al.,

13 Defendants. 14 15 16 Pending before the Court is Plaintiff’s Application to Proceed in District Court 17 Without Prepaying Fees or Costs (Doc. 2), which will be granted. The Court will screen 18 Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2) before it is allowed to be served. 19 Pursuant to that screening, Plaintiff’s Complaint is dismissed. 20 I. Legal Standard 21 Congress provided with respect to in forma pauperis cases that a district court “shall 22 dismiss the case at any time if the court determines” that the “allegation of poverty is 23 untrue” or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on 24 which relief may be granted,” or “seeks monetary relief against a defendant who is immune 25 from such relief.” 28 U.S.C. § 1915(e)(2). While much of § 1915 outlines how prisoners 26 can file proceedings in forma pauperis, § 1915(e) applies to all in forma pauperis 27 proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1129 (9th 28 Cir. 2000) (en banc). “It is also clear that section 1915(e) not only permits but requires a 1 district court to dismiss an in forma pauperis complaint if it fails to state a claim,” id., or if 2 it is frivolous or malicious. § 1915(e)(2). If the Court determines that a pleading could be 3 cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend 4 a complaint before the dismissal of the action. See Lopez, 203 F.3d at 1127–1129. 5 II. Analysis 6 A. Section 1983 7 Plaintiff first alleges claims under 42 U.S.C. § 1983 against Defendants Lisa Millett, 8 Joelle Higby, Allison Botta, Eleni Vaita, the State of Arizona, and the Arizona Department 9 of Child Safety (“DCS”). (Doc. 1 at 2.) However, § 1983 claims against states, state 10 entities, and state officials acting in their official capacities are barred because states are 11 not “persons” covered by § 1983. Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989). 12 Because Plaintiff sues the State of Arizona, DCS, and four individual defendants in their 13 official capacities, he fails to state a claim for which relief can be granted. Plaintiff’s 14 § 1983 claims are dismissed. 15 B. ADA Claims 16 Plaintiff next alleges claims under the Americans with Disabilities Act (“ADA”). 17 (Doc. 1 at 1.) Unlike § 1983 claims, a state may be sued under Title II of the ADA. 42 18 U.S.C. § 12202; see Miller v. Ceres Unified Sch. Dist., 141 F. Supp. 3d 1038, 1043 (E.D. 19 Cal. 2015) (collecting cases). To state a claim under Title II, “a plaintiff must show: (1) he 20 is a ‘qualified individual with a disability’; (2) he was either excluded from participation 21 in or denied the benefits of a public entity’s services, programs or activities, or was 22 otherwise discriminated against by the public entity; and (3) such exclusion, denial of 23 benefits, or discrimination was by reason of his disability.” Weinreich v. L.A. Cnty. Metro. 24 Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis omitted) (quoting 42 U.S.C. 25 § 12132). 26 Plaintiff alleges that Defendants filed “discriminatory pleadings regarding the 27 plaintiff’s ADA disability” and refused to “provid[e] [Plaintiff] with a [sic] special 28 accommodations.” (Doc. 1 at 2.) Specifically, Plaintiff alleges that he has a severe mental 1 illness, made repeated requests for accommodation, and that Defendants ignored or denied 2 those requests and used Plaintiff’s disability as a basis for terminating his parental rights, 3 which amounted to illegal discrimination under Title II. (Doc. 1.) Although such 4 allegations would normally be sufficient under Rule 8, Plaintiff fails to isolate the conduct 5 of each Defendant and instead “[l]ump[s] all the defendants together and only generally 6 alleg[es] actions taken by all defendants.” Deloney v. Cnty. of Fresno, No. 1:17–cv– 7 01336–LJO–EPG, 2018 WL 1693383, at *5 (E.D. Cal. Apr. 6, 2018). “[W]hen a pleading 8 fails ‘to allege what role each Defendant played in the alleged harm,’ this ‘makes it 9 exceedingly difficult, if not impossible, for individual Defendants to respond to Plaintiffs’ 10 allegations.’” Adobe Sys. Inc. v. Blue Source Grp., Inc., 125 F. Supp. 3d 945, 964 (N.D. 11 Cal. 2015) (quoting In re iPhone Application Litig., No. 11–MD–02250–LHK, 2011 WL 12 4403963, at *8 (N.D. Cal. Sept. 20, 2011)); see also Tate v. Univ. Med. Ctr. of S. Nev., No. 13 2:09–cv–1748–LDG (RJJ), 2010 WL 3829221, at *3 (D. Nev. Sept. 24, 2010). Because 14 the Complaint fails to provide sufficient notice as to the nature of the claims being asserted 15 against each Defendant, Plaintiff’s ADA claims are dismissed. If Plaintiff elects to file an 16 amended complaint, he must identify which Defendants are responsible for each specific 17 violation of the ADA alleged. 18 III. Leave to Amend 19 Plaintiff will be given an opportunity, if he so chooses, to amend his complaint. In 20 the amended complaint, Plaintiff must state what rights he believes were violated. Fed. R. 21 Civ. P. 8(a)(2). Each claim of an alleged violation must be set forth and labeled in a 22 separate count. The amended complaint must also state why the federal court has 23 jurisdiction over Plaintiff’s claims. Any amended complaint filed by Plaintiff must 24 conform to the requirements of Rule 8(a)(2) and (d)(1) of the Federal Rules of Civil 25 Procedure. 26 Plaintiff is advised that if he elects to file an amended complaint but fails to comply 27 with the Court’s instructions explained in this Order, the action will be dismissed pursuant 28 to 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure. See || McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal with prejudice 2|| of amended complaint that did not comply with Rule 8(a)); Corcoran y. Yorty, 347 F.2d || 222, 223 (9th Cir. 1965) (affirming dismissal without leave to amend second complaint 4|| that was “so verbose, confused[,] and redundant that its true substance, if any, [was] well disguised’’). 6 CONCLUSION 7 The application for IFP status is granted. However, because states, state entities, 8 || and state officials sued in their official capacities are not suable under § 1983, those claims 9|| are dismissed. Moreover, because the Complaint fails to allege specific illegal conduct by || each Defendant, Plaintiff's ADA claims are dismissed. 11 IT IS THEREFORE ORDERED that Plaintiff's Application to Proceed in District 12 || Court Without Prepaying Fees or Costs (Doc. 2) is GRANTED. Plaintiff shall be 13 || responsible for service by waiver or of the Summons and Complaint. 14 IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1915(e)(2), Plaintiffs 15 || Complaint is dismissed for failure to comply with Rule 8, with leave to file an amended complaint WITHIN 30 DAYS. 17 IT IS FURTHER ORDERED that if Plaintiff elects not to file an amended |} complaint WITHIN 30 DAYS of the date of this Order, the Clerk of Court shall dismiss 19 || without prejudice and terminate this action without further Order of the Court. 20 IT IS FURTHER ORDERED that if Plaintiff elects to file an amended complaint, □□ the complaint may not be served until and unless the Court screens the amended complaint 22 || pursuant to 18 U.S.C. § 1915(e)(2). 23 Dated this 8th day of February, 2022. 24 - 35 A Whacrsay Sooo) Whicren 26 Chief United states District Judge 27 28

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