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Dema v. Allegiant Air, LLC

United States District Court, D. Arizona

July 11, 2014

Victor O. Dema, Plaintiff,
v.
Allegiant Air, LLC, Defendant.

ORDER

STEVEN P. LOGAN, District Judge.

Having reviewed Plaintiff's Response to the Order to Show Cause (Doc. 10), the Court will vacate the July 9, 2014 Order (Doc. 9) dismissing this case for failure to prosecute. However, having reviewed this matter on reassignment, for the reasons that follow, Plaintiff's complaint will be dismissed with leave to amend.

I. Screening of In Forma Pauperis Complaint

On May 6, 2014, Plaintiff filed a Complaint (Doc. 1) and Application to Proceed In District Court Without Prepaying Fees or Costs (Doc. 2). In an Order dated June 12, 2014 (Doc. 4), Plaintiff's request to proceed in forma pauperis was granted, and he was directed to serve his complaint on Defendant.

A. Legal Standards

With respect to in forma pauperis proceedings, the Court shall dismiss such action at any time if it determines that:

(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(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). See also Lopez v. Smith, 203 F.3d 1122, 1126 fnt. 7 (9th Cir. 2000) (28 U.S.C. § 1915(e) "applies to all in forma pauperis complaints, " not merely those filed by prisoners). The Court must therefore dismiss an in forma pauperis complaint if it fails to state a claim or if it is frivolous or malicious. Lopez, 203 F.3d at 1127 ("It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th Cir. 1984).

Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a claim for relief, a complaint must include: (1) "a short and plain statement of the grounds for the court's jurisdiction;" (2) "a short and plain statement of the claim showing that the pleader is entitled to relief;" and (3) "a demand for the relief sought." Fed.R.Civ.P. 8(a). The complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."

Id.

Further, "[e]ach allegation must be simple, concise, and direct." Fed.R.Civ.P. 8(d)(1). Even where a complaint has the factual elements of a cause of action present but scattered throughout the complaint and not organized into a "short and plain statement of the claim, " it may be dismissed for failure to ...


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