United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
the Court are Plaintiff Jennifer Foor’s request for a
temporary restraining order (“TRO”), motion and
request for return of property, motion to stay the order of a
Phoenix City judge, and application to proceed in forma
pauperis (“IFP”). (Doc. 2-5.) For the
following reasons, the Court grants Plaintiff’s request
to proceed IFP, but denies her other motions and dismisses
her Complaint without prejudice.
about December 4, 2012, Defendant Arizona Humane Society
(“AHS”) entered Plaintiff’s property and
seized approximately forty of Plaintiff’s feral cats.
(Compl. ¶ 12.) On or about December 7, 2012, the Phoenix
Municipal Court ruled during Plaintiff’s post-seizure
hearing that the seizure of Plaintiff’s cats was
lawful. (Compl. ¶ 15.) After receiving a “Notice
of Right to Appeal, ” Plaintiff filed a special action
on December 24, 2012 in the Maricopa County Superior Court.
(Compl. ¶¶ 19- 21.) During the hearing on March 25,
2013, the Superior Court ordered the Municipal Court to
clarify its order and ruling. (Compl. ¶ 25.) On April
15, 2013, the Municipal Court clarified that in its previous
ruling it had not forfeited Plaintiff’s rights to the
cats. (Compl. ¶ 27.) As a result, the Municipal Court
held a civil forfeiture hearing on April 29, 2013, and any
right Plaintiff had to the cats was forfeited due to
sanitation issues. (Compl. ¶ 29.)
October 29, 2013, the Superior Court denied Plaintiff’s
motion for special action and ruled that it could not
substitute its judgment for the Municipal Court ruling.
(Compl. ¶ 36.) On or about April 2, 2016, the Arizona
Court of Appeals Division One affirmed the Superior
Court’s decision. (Compl. ¶ 37.) On April 11,
2016, the Arizona Supreme Court denied review and
subsequently denied Plaintiff’s motion for
reconsideration. (Compl. ¶ 38.) On May 19, 2016,
Plaintiff filed a motion for return of property, a motion to
vacate the civil forfeiture, and a motion to reconsider the
civil forfeiture in the Municipal Court. (Compl. ¶ 41.)
The Municipal Court denied Plaintiff’s motion for
return of property for lack of jurisdiction. (Compl. ¶
February 7, 2013, the City of Phoenix Prosecutor’s
Office filed an animal cruelty complaint against Plaintiff.
(Compl. ¶ 24.) However, on or around August 6, 2013, the
criminal complaint was dismissed. (Compl. ¶ 31.) Upon
dismissal, Plaintiff requested the return of her cats, but
the City of Phoenix denied her request explaining that she
needed to appeal her civil forfeiture. (Compl. ¶ 33.)
26, 2016, Plaintiff filed a complaint, a request for
temporary restraining order, and a motion to stay within this
District. (Doc. 8.) On May 27, 2016, the complaint was
dismissed for lack of jurisdiction. Id.
filed the instant complaint and motion on June 13, 2016,
which seeks another TRO prohibiting the City of Phoenix and
the AHS from disposing of her cats. Plaintiff’s
Complaint, moreover, has been recast to raise federal
questions and now alleges violations of her First, Fourth,
Fifth, and Eighth Amendment rights pursuant to 42 U.S.C.
§ 1983, as well as claims of malicious prosecution,
intentional infliction of severe emotional distress,
negligent infliction of severe emotional distress, criminal
trespass, and intentional damage to private property.
TRO consists of a single sentence asking this Court to enjoin
the City of Phoenix and the AHS from disposing of her cats.
Plaintiff, however, fails to make any argument or provide any
basis on which this Court may act in accordance with her
request. Plaintiff no longer has any rights to the cats due
to the final judgment of the state court system forfeiting
any interest she has to them. Plaintiff’s Complaint
alleges various federal and state law violations, none of
which weigh on the AHS’s authority (or lack thereof) to
hold the cats to which Plaintiff may have had some rights.
See Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir.
2012) (“A preliminary injunction is ‘an
extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the
burden of persuasion.’”) (citation omitted).
Plaintiff fails to make any showing; her request for a TRO is
In Forma Pauperis
has provided that with respect to IFP cases 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).
While much of § 1915 outlines how prisoners can file
proceedings in forma pauperis, section 1915(e) applies to all
in forma pauperis proceedings not just those filed
by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127
(9th Cir. 2000). “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” or that is frivolous or malicious. Id.
“[A] finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or
wholly incredible, whether or not there are judicially
recognized facts available to contradict them.”
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Court grants Plaintiff’s request for IFP and also
dismisses the case for “failure to state a
claim.” § 1915(e)(2). To survive dismissal for
failure to state a claim, a complaint must contain more than
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action;” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When
analyzing a complaint for failure to state a claim under Rule
12(b)(6), “[a]ll ...