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Simington v. State

United States District Court, D. Arizona

April 4, 2014

Kennon Simington, Jr., Plaintiff,
v.
State of Arizona, and its Subsidiary and affiliated employee William F. Mills Todd Vick, Dale Fogelstrom, Wendy Million, and Brian Knight, Defendants.

REPORT AND RECOMMENDATION

BRUCE G. MacDONALD, Magistrate Judge.

On May 28, 2011, Plaintiff Kennon Simington, Jr., filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), and 5 U.S.C. § 552a (Doc. 1) and an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2). On July 25, 2013, Plaintiff filed an Amended Complaint pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), and 5 U.S.C. § 552a (Doc. 11). On November 7, 2013, the Court denied Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs without prejudice (Doc. 17). Accordingly, on December 9, 2013, Plaintiff filed an Amended Application to Proceed Without Prepaying Frees [sic] or Costs (Doc. 26). On March 11, 2014, Defendants Wendy Million and Brian Knight filed a Motion for Summary Judgment (Doc. 27).

I. AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS

The Court may allow a plaintiff to proceed without prepayment of fees when it is shown by affidavit that he "is unable to pay such fees[.]" 28 U.S.C. § 1915(a)(1). Plaintiff's statement, made under penalty of perjury, establishes that Plaintiff is unemployed and receives $565.00 per month in disability payments. Plaintiff does not own a vehicle and his monthly expenses exceed his income. Plaintiff now avers that he is not paying an attorney for services in connection with this case, without explanation. Despite this, the Court finds Plaintiff is unable to pay the fees. Plaintiff's Amended Application to Proceed Without Prepaying Frees [sic] or Costs (Doc. 26) will be granted.

II. STATUTORY SCREENING OF PLAINTIFF'S COMPLAINT

This Court is required to dismiss a case if the Court determines that the allegation of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Rule 8(a), Fed.R.Civ.P. While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Where the pleader is pro se, however, the pleading should be liberally construed in the interests of justice. Johnson v. Reagan, 524 F.2d 1123 (9th Cir. 1975). Nonetheless, a complaint must set forth a set of facts that serves to put defendants on notice as to the nature and basis of the claim(s).

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se plaintiff] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's Complaint will be dismissed for failure to state a claim, with leave to amend because the Complaint may possibly be saved by amendment.

III. COMPLAINT

Plaintiff's Amended Complaint (Doc. 11) supersedes his original Complaint (Doc. 1). See 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). The Court will treat the original complaint as nonexistent. Ferdik, 963 F.2d at 1262.

Plaintiff's Amended Complaint (Doc. 11) names the State of Arizona, William F. Mills, Todd Vick, Dale Fogelstrom, Wendy Million and Brian Knight as Defendants. Fed.R.Civ.P. 10(a) ("The title of the complaint must name all the parties"). In his statement of facts, Plaintiff states that "[t]he Hon. Wendy Million (Judge Million[]) was a City Court Judge at the time of the events. William Mills, Dale Fogelstrom, and Todd Vick were assistant prosecutors in the City Prosecutor's Office at the time of the events." Amended Compl. (Doc. 11) at 2 ¶ 5. Plaintiff further indicates that Defendant Brian Knight was a Tucson Police Department Officer. Id. at 3 ¶ 6(e).

Plaintiff seeks this Court "to hold the State of Arizona, City of Tucson Judge and Tucson Police Department personally liable for any ensuing damage or injuries" arising from denying ...


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