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Walker v. Botezatu

United States District Court, D. Arizona

April 25, 2016

Jerry Walker, Plaintiff,
v.
Emil Botezatu, et al., Defendant.

ORDER

Honorable John Z. Boyle, United States Magistrate Judge

Pending before the Court are Plaintiff’s Complaint for Damages (Doc. 1), and Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2). The Court will grant Plaintiff’s Application. However, as detailed below, the Court will dismiss Plaintiff’s Complaint because his claims are either time-barred or he failed to allege facts sufficient to state a claim for relief. The Court will allow Plaintiff leave to file an amended complaint.

I. Application to Proceed in District Court Without Prepaying Fees or Costs

In Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs, he declares under penalty of perjury that he is unable to pay the filing fee and other costs associated with this case. Plaintiff has presented financial information to support his Application. Given Plaintiff’s lack of significant income and assets, the Court will grant his Application.

II. Screening IFP Complaints Pursuant to 28 U.S.C. § 1915(e)(2)

For cases proceeding in forma pauperis, Congress provided that a district court “shall dismiss the case at any time if the court determines” that the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “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 n.7 (9th Cir. 2000) (noting that section 1915(e) applies to all in forma pauperis complaints, not merely those filed by prisoners). Accordingly, “section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez, 203 F.3d at 1127.

III. Analysis of Plaintiff’s Complaint

In his Complaint, Plaintiff asserts claims for “theft and related offenses” and intentional infliction of emotional distress against Defendant Emile Botezatu. (Doc. 1 at 3-4.)[1] Plaintiff’s claims are based on the following allegations: (1) Defendant stole Plaintiff’s passport from him while Plaintiff was in Romania in the summer of 2012, causing Plaintiff to obtain an emergency travel replacement passport and to be detained and questioned by United States Customs and Border Protection Officers; and (2) “Plaintiff was warned, by persons he met while visiting his wife in Romania, that [Defendant] made threats against him if Plaintiff was to contact ICE about Defendant’s illegal presence and employment in Las Vegas.” (Id. at 2-3.)[2]

a. Plaintiff’s Conversion Claim

The Court will dismiss Plaintiff’s conversion claim as time-barred. Plaintiff’s claim is subject to either a two- or three-year statute of limitations. See Ariz. Rev. Stat. Ann. § 12-542 (setting out two-year statute of limitations for tort claims); Jackson v. Am. Credit Bureau, Inc., 531 P.2d 932, 934 (Ariz.Ct.App. 1975) (applying A.R.S. § 12-542 to a conversion claim); Nev. Rev. Stat. § 11.190(3)(c) (a three-year statute of limitations applies to property torts such as conversion, interference with contractual relations, and interference with prospective economic advantage).

Here, Plaintiff asserts claims based on the taking of his passport, which he alleges occurred in the summer of 2012-over three years before filing his November 27, 2015 Complaint in this case. (Doc. 1.) Plaintiff does not set forth any allegations that show his causes of actions accrued after November 27, 2012, or that the applicable statute of limitations was tolled. Therefore, the Court will dismiss Plaintiff’s conversion claim as time-barred.

b. Plaintiff’s Intentional Infliction of Emotional Distress Claim

The Court will likewise dismiss Plaintiff’s claim for intentional infliction of emotional distress. To the extent Plaintiff asserts that claim based on Defendant’s taking of Plaintiff’s passport, that claim is also time-barred by the applicable two-year statute of limitations under Arizona and Nevada law. Cecala v. Newman, 532 F.Supp.2d 1118, 1142 (D. Ariz. 2007) (applying two-year statute of limitations to an Arizona intentional infliction of emotional distress claim); Nev. Rev. Stat. 11.190(4)(e); State Farm Mut. Auto Ins. Co. v. Fitts, 99 P.3d 1160, 1161 (Nev. 2004) (recognizing the “two-year statute of limitations governing tort actions brought in Nevada”).

Further, to the extent Plaintiff’s claim is based on his allegation that “[m]ore than a year ago, ” Plaintiff was “warned” by third parties that Defendant had generally made “threats” against Plaintiff if Plaintiff contacted “ICE about Defendant’s illegal presence and employment in ...


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