United States District Court, D. Arizona
STEPHEN M. McNAMEE, Senior District Judge.
Plaintiff John Calvin Neuendorf, II, who is confined in the Arizona State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and a deficient Application to Proceed In Forma Pauperis. On March 26, 2013, the Court denied the Application to Proceed and dismissed the action under the "three strikes" provision of 28 U.S.C. § 1915(g). On April 5, 2013, Plaintiff filed a Motion for Reconsideration in which he argued that the dismissal under § 1915(g) was in error. On May 21, 2013, Plaintiff filed a Notice of Appeal.
In a July 17, 2013 Order, the Court granted the Motion for Reconsideration and gave Plaintiff 30 days within which to file a complete Application to Proceed In Forma Pauperis. On September 19, 2013, Plaintiff's Appeal was dismissed for lack of jurisdiction.
On August 26, 2013, Plaintiff filed a second deficient Application to Proceed In Forma Pauperis. In a December 13, 2013 Order, the Court denied the deficient Application and gave Plaintiff a final 30 days to pay the filing fee or file a complete Application to Proceed In Forma Pauperis. The Court also granted Plaintiff's Motion to Amend.
On December 17, 2013, Plaintiff filed a Motion for Status (Doc. 33). On December 31, 2013, he filed a Motion for Extension of Time (Doc. 34). On January 6, 2014, Plaintiff filed a "Motion for Judgment against the United States" (Doc. 35).
On January 15, 2014, Plaintiff filed a complete Application to Proceed In Forma Pauperis (Doc. 37) and a Third Amended Complaint (Doc. 39). On January 24, 2014, Plaintiff filed another Application to Proceed (Doc. 40) and a Fourth Amended Complaint (Doc. 42). On February 7, 2014, Plaintiff filed a Fifth Amended Complaint (Doc. 43).
On March 4, 2014, Plaintiff filed a "Motion Quo Statu" (Doc. 44). On April 1, 2014, Plaintiff filed a "Motion for Leave to Amend Civil Rights Complaint" (Doc. 47) and, on April 9, 2014, a "Motion for Scheduling Conference" (Doc. 48). Finally, On April 22, 2014, Plaintiff filed a Notice of Appeal to the Ninth Circuit Court of Appeals (Doc. 49).
The Court will dismiss the Fifth Amendment Complaint for failure to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure and give Plaintiff one final opportunity to amend his claims. Plaintiff will be given 30 days to file a sixth amended complaint. The Court will not grant any further extensions of time and will not consider an amended complaint filed after the 30-day deadline.
The remainder of Plaintiff's pending Motions will be resolved as discussed below.
I. Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff's January 15, 2014 Application to Proceed In Forma Pauperis (Doc. 37) will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $27.60. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
The Court will deny as moot Plaintiff's January 24, 2014 Application to Proceed In Forma Pauperis (Doc. 40).
II. Statutory Screening of Prisoner Complaints
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).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). 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, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[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 (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 679. 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 681.
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 prisoner] 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). The Court will dismiss Plaintiff's ...