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Foor v. City of Phoenix

United States District Court, D. Arizona

July 21, 2016

Jennifer Foor, Plaintiff,
v.
City of Phoenix, et al., Defendants.

          ORDER

          Honorable G. Murray Snow United States District Judge

         Before 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.

         BACKGROUND

         On or 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.)

         On 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. ¶ 42.)

         On 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.)

         On May 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.

         Plaintiff 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.

         DISCUSSION

         I. Plaintiff’s TRO

         Plaintiff’s 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 denied.

         II. In Forma Pauperis

         Congress 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).

         The 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 ...


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