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Almendarez v. Imdorf

United States District Court, Ninth Circuit

December 9, 2013

Tony Ray Almendarez, Plaintiff,
v.
John Imdorf, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, District Judge.

On August 5, 2013, Plaintiff Tony Ray Almendarez, who is confined in the Maricopa County Fourth Avenue Jail, filed a Complaint in Maricopa County Superior Court, Matter No. CV 2013-010195. In his Complaint, Plaintiff asserted claims of unlawful arrest, malicious prosecution, defamation, illegal search and seizure and due process violations. (Doc. 1, Ex. A.) Plaintiff named two individuals in his Complaint: Phoenix Police Officer John Imdorf and Phoenix Police Detective James Ferree. On October 2, 2013, Defendants Imdorf and Ferree removed the case to federal court based on federal question subject matter jurisdiction, stating that Defendant Imdorf first received a copy of the Complaint on September 11, 2013. On October 9, 2013, Defendants filed a Motion to Dismiss for Failure to State a Claim (Doc. 3). On October 28, 2013, Plaintiff filed a Motion for Leave to File an Amended Complaint (Doc. 4) along with a lodged proposed Amended Complaint (lodged at Doc. 5). On November 14, 2013, Defendants filed a Response to Plaintiff's Motion for Leave to File an Amended Complaint and a Motion for a Stay or in the Alternative, Motion for Screening (Doc. 6).

The Complaint facially supports that subject matter jurisdiction is proper in federal court and that the case was timely removed. 28 U.S.C. 1446(b). Plaintiff's Motion will be granted insofar as the Amended Complaint supersedes the original Complaint in its entirety. The Court will Order the filing of the lodged Amended Complaint as Plaintiff's "First Amended Complaint" and will dismiss the First Amended Complaint with leave to amend using the court-approved form complaint in compliance with the Instructions and Rule 8 of the Federal Rules of Civil Procedure. The Court will deny Defendants' motions as moot.[1]

I. Removal to Federal Court Was Proper

A defendant may remove any civil action brought in state court over which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a). That is, a civil action that could have originally been brought in federal court may be removed from state to federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal court has original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

The Complaint in this case facially supports that subject matter jurisdiction exists in federal court because Plaintiff alleges violations of his federal constitutional rights. 28 U.S.C. § 1441. Further, the case was timely removed. 28 U.S.C. § 1446(b) (requiring that a case be removed within 30 days after receipt by the defendant). Plaintiff has not objected to removal. Accordingly, the case was properly removed.

II. Statutory Screening

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

Rule 8(a) of the Federal Rules of Civil Procedure requires a "short and plain statement of the claim." Fed.R.Civ.P. 8(a)(2). Rule 8(d)(1) states that "[e]ach allegation must be simple, concise, and direct." A complaint having the factual elements of a cause of action scattered throughout the complaint and not organized into a "short and plain statement of the claim" may be dismissed for failure to satisfy Rule 8(a). See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996). It is not the responsibility of the Court to review a rambling narrative in an attempt to determine the number and nature of a plaintiff's claims.

III. Failure to Comply with Rule 8 of the Federal Rules of Civil Procedure

The Court has reviewed Plaintiff's First Amended Complaint and concludes that it fails to comply with Rule 8 of the Federal Rules of Civil Procedure. Plaintiff's First Amended Complaint contains seven single-spaced pages of "Facts" followed by three single-spaced pages of "Legal Claims." Further, each separately numbered paragraph under "Legal Claims" appears to contain multiple claims and it is not clear which facts apply to each claim. Thus, the Court cannot meaningfully review the First Amended Complaint, as required by 28 U.S.C. § 1915A(a).

IV. Leave to Amend

For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second amended complaint and dismiss this action without further notice to Plaintiff.

Plaintiff must clearly designate on the face of the document that it is the "Second Amended Complaint." The second amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint or First Amended Complaint by reference. Plaintiff may include only one claim per count.

A second amended complaint supersedes the original Complaint and First Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint or first amended complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

V. Warnings

A. Address Chages

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

B. Copies

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.

C. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) Plaintiff's Motion for Leave to File an Amended Complaint (Doc. 4) is granted insofar as the Amended Complaint supersedes the original Complaint in its entirety and the Clerk of Court must file the lodged Amended Complaint (lodged at Doc. 5) as Plaintiff's First Amended Complaint.

(2) The First Amended Complaint (lodged at Doc. 5) is dismissed for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.

(3) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice.

(4) Defendants' Motion to Dismiss for Failure to State a Claim (Doc. 3) and Motion for a Stay or in the Alternative, Motion for Screening (Doc. 6) are denied as moot.

(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.


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