United States District Court, D. Arizona
S. WILLETT UNITED STATES MAGISTRATE JUDGE
issue is pro se Plaintiff Ernest Bishop's
Application to Proceed in District Court Without Prepaying
Fees or Costs (Doc. 2). The Court finds that Plaintiff does
not have sufficient means to pay the Court's fees and
will grant the Application. However, as set forth below, upon
screening Plaintiff's Complaint (Doc. 1) pursuant to 28
U.S.C. § 1915(e)(2), the Court finds that Plaintiff has
not satisfied the pleading requirements of the Federal Rules
of Civil Procedure and fails to state a cause of action. The
Court therefore dismisses the Complaint (Doc. 1) without
prejudice and grants Plaintiff leave to file a First Amended
Complaint consistent with the findings of the Court set forth
Statutory Screening of In Forma Pauperis Complaint Pursuant
to 28 U.S.C. § 1915(e)(2)
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
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.
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 litigant] ‘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)).
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). “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.” Id. at 1127.
Subject Matter Jurisdiction and Pleading in Federal
state courts, federal courts only have jurisdiction over a
limited number of cases, and those cases typically involve
either a controversy between citizens of different states
(“diversity jurisdiction”) or a question of
federal law (“federal question jurisdiction”).
See 28 U.S.C. §§ 1331, 1332. The United
States Supreme Court has stated that a federal court must not
disregard or evade the limits on its subject matter
jurisdiction. Owen Equip. & Erections Co. v.
Kroger, 437 U.S. 365, 374 (1978). Thus, a federal court
is obligated to inquire into its subject matter jurisdiction
in each case and to dismiss a case when subject matter
jurisdiction is lacking. See Valdez v. Allstate Ins.
Co., 372 F.3d 1115, 1116 (9th Cir. 2004); Fed.R.Civ.P.
Complaint form names Bullhead City as a Defendant. Plaintiff
attaches to the form a series of sworn letters. Plaintiff
alleges in the first letter (Doc. 1 at 2-5) that he has been
paying rent for seven years on a “dead man house”
in Bullhead City and wants his money back. Plaintiff alleges
that he is being threatened by family, has HIV, and wants
money from this lawsuit to go to his children. Plaintiff
alleges that Bullhead City has “close the college on me
where I can't use computer today closes pain clinic where
I can't get my pain pills for my H.I.V. and neck and back
pain, shout [sic] down computer at Southwest Behavior where I
can't seem [sic] out Email to any F.B.I., D.E.A. home
Land sercuity [sic] or put in any other complaints against
Bullhead City AZ.” In the second sworn letter attached
to the Complaint form (Doc. 1 at 6-9), Plaintiff alleges that
Bridget Wicks, a Nurse Practitioner at the Guidance Center in
Flagstaff, Arizona, conducted an STD test on Plaintiff's
blood despite his statement that he did not want to be
tested. He alleges that Ms. Wicks violated his civil rights
in doing so. Plaintiff further alleges that people are
harassing him by saying he has HIV. In the third sworn letter
(Doc. 1 at 9), Plaintiff requests the appointment of counsel.
In the fourth unsworn letter (Doc. 1 at 10), Plaintiff
alleges that an order of protection has been issued against
Plaintiff at his address that indicates Plaintiff is a
threat. Plaintiff asserts that the order means he can be
killed by the police, and Plaintiff has notified the CIA,
FBI, state and local authorities of the civil violation and
crimes perpetrated against him. In the fifth unsworn document
dated June 3, 2016 attached to the Complaint form (Doc. 1 at
11-12), Plaintiff states that an order of protection was
served against him at his home in Bullhead City. The police
required him to pack his belongings and leave. Finally,
Plaintiff has attached multiple documents from Sonora Quest
Laboratories, a letter from the National Association for the
Advancement of Colored People, a letter from the Arizona
Department of Health Services, and copies of court papers
from the Bullhead City Municipal Court in different case
numbers (Doc. 1 at 13-22).
construing the disjointed information presented to the Court,
the Court assumes that Plaintiff attempts to bring a claim
against Bullhead City under 42 U.S.C. § 1983 for a
violation of Plaintiff's civil rights. To prevail in a 42
U.S.C. § 1983 claim, a plaintiff must show that (1) acts
by the defendant (2) under color of state law (3) deprived
him of federal rights, privileges or immunities and (4)
caused him damage. Thornton v. City of St. Helens,
425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting
Shoshone-Bannock Tribes v. Idaho Fish & Game
Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In
addition, a plaintiff must allege that he suffered a specific
injury as a result of the conduct of a particular defendant,
and he must allege an affirmative link between the injury and
the conduct of that defendant. Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976). Determining whether an entity
is subject to suit under § 1983 is the “same
question posed in cases arising under the Fourteenth
Amendment: is the alleged infringement of federal rights
fairly attributable to the [government]?” Sutton v.
Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th
Cir. 1999) (citing Rendell-Baker v. Kohn, 457 U.S.
830, 838 (1982)). For a court to answer this question in the
affirmative, a plaintiff must show that two requirements are
met: (1) the deprivation to the plaintiff by the entity
“must result from a governmental policy, ” and
(2) “the party charged with the deprivation must be a
person who may fairly be said to be a [governmental]
actor.” Id. Municipalities and other local
governmental entities may be sued under 42 U.S.C. § 1983
for the acts of their officials only if a plaintiff can prove
that the constitutional deprivation was the result of a
custom or policy of the governmental entity. Monell v.
Dept. of Soc. Servs., 436 U.S. 658, 690-691 (1978). A
local government cannot be held liable for the acts of its
employees under the theory of respondeat superior.
Bd. Of County Comm'rs of Bryan County Okla. v.
Brown, 520 U.S. 397, 403 (1997). Simply because a
municipality employs a wrong-doing official does not create
liability on behalf of the municipality.
the allegations in the Complaint do not meet the requirements
of § 1983. The Complaint contains no allegations that
the procedures used by Ms. Wicks are part of a governmental
policy. Nor is sufficient information alleged for the Court
to conclude that Ms. Wicks is a governmental actor. Finally,
Plaintiff does not indicate what policy or custom Bullhead
City has adopted and in what way Bullhead City has deprived
Plaintiff of his civil rights. Accordingly, Plaintiff fails
to allege a state action sufficient to raise a § 1983
claim. See Sutton, 192 F.3d at 836-43.
Court cannot discern any other federal claim based on
Plaintiff's Complaint. The Court also does not find that
the Complaint alleges any state law claim relying on
diversity jurisdiction. Plaintiff has not alleged that his
claim involves a controversy between citizens of different