United States District Court, D. Arizona
G. Campbell United States District Judge
Tanya Winters filed an amended complaint against the State of
Arizona on November 28, 2016 (Doc. 8), pursuant to the
Court's Order (Doc. 7). The Court will screen
Plaintiff's First Amended Complaint pursuant to 28 U.S.C.
§ 1915(e)(2). Plaintiff has also filed a motion to
appoint pro bono counsel. Doc. 10. For the reasons stated
below, the Court will dismiss the amended complaint and deny
the motion to appoint pro bono counsel.
proceedings, a district court “shall dismiss the case
at any time if the court determines that . . . the action . .
. fails to state a claim on which relief can be
granted[.]” 28 U.S.C. § 1915(e)(2). Although much
of § 1915 concerns prisoner litigation, § 1915(e)
applies to all IFP proceedings. Lopez v. Smith, 203
F.3d 1122, 1126 n.7 (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. A
district court dismissing under this section “should
grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts.”
Id. at 1127-29 (citations omitted).
of the Federal Rules of Civil Procedure provides that
“[a] pleading that states a claim for relief must
contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). This short and plain statement “need
not contain detailed factual allegations; rather, it must
plead ‘enough facts to state a claim to relief that is
plausible on its face.'” Clemens v.
DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“The plausibility standard . . .
asks for more than a sheer possibility that a defendant has
acted unlawfully”). Dismissal is appropriate where the
complaint lacks a cognizable legal theory, lacks sufficient
facts alleged under a cognizable legal theory, or contains
allegations disclosing some absolute defense or bar to
recovery. See Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. Cnty. of
L.A., 119 F.3d 778, 783 n.1 (9th Cir. 1997).
Plaintiff's amended complaint contains more information
than her original complaint, it still fails to state a claim
upon which relief can be granted. Plaintiff alleges that the
State of Arizona is “not distributing Federal taxes and
therefore violating the Complainants Constitutional
Rights.” Doc. 8 at 2. As a basis for jurisdiction,
Plaintiff cites the Arizona state constitution, which is not
a legitimate basis for jurisdiction in this Court.
Id. at 1. Plaintiff appears to quote at length from
a state criminal money laundering statute, but such a statute
does not grant her a private right of action in federal
court. Id. at 2-3. Plaintiff fails to set forth any
facts justifying her claim, and identifies no cognizable
legal theory for this case.
Plaintiff has failed to state a claim, the Court again will
dismiss this action with leave to amend. The Court warns
Plaintiff that a third failure to plead a claim will result
in dismissal without leave to amend.
Leave to Amend and Plaintiff's Obligations.
shall have until December 23, 2016 to file a second amended
complaint. Plaintiff is advised that she must become familiar
with, and follow, the Federal Rules of Civil Procedure and
the Rules of the United States District Court for the
District of Arizona (“Local Rules”), which may be
obtained in the Clerk of Court's office. For purposes of
the amended complaint, Plaintiff is directed to Rule 8 of the
Federal Rules of Civil Procedure. Rule 8(a) provides that a
complaint “must contain (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). These pleading
requirements should be set forth in separate and discrete
paragraphs. Rule 8(d) provides that each such paragraph
“must be simple, concise, and direct.”
“short and plain statement of the claim” required
by Rule 8(a)(2) must not only designate a cause of action,
but must also include enough factual allegations to render
the claim plausible. Iqbal, 556 U.S. at 677. If
Plaintiff chooses to file a second amended complaint
asserting constitutional violations by federal or state
officials, her pleading should include a statement of the
constitutional rights Plaintiff believes to have been
violated, how each right was violated, how each defendant
contributed to the violation, and what injury was caused by
each alleged constitutional violation. Such factual
allegations must provide enough information to allow the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
Plaintiff fails to prosecute this action or to comply with
the rules or any Court order, the Court may dismiss the
action with prejudice pursuant to Federal Rule of Civil
Procedure 41(b). See Ferdik v. Bonzelet, 963 F.2d
1258, 1260-61 (9th Cir. 1992) (holding that the district
court did not abuse its discretion in dismissing a pro se
plaintiff's complaint for failing to comply with a court
Motion to Appoint Pro Bono Counsel.
is no constitutional right to appointed counsel in a civil
case. See Ivey v. Bd. of Regents of Univ. of Alaska,
673 F.2d 266, 269 (9th Cir. 1982). The Court, however, does
have the discretion to appoint counsel in “exceptional
circumstances.” See 28 U.S.C. §
1915(e)(1); Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d
1089, 1093 (9th Cir. 1980). “A finding of exceptional
circumstances requires an evaluation of both 'the
likelihood of success on the merits and the ability of the
petitioner to articulate his or her claim pro se in
light of the complexity of the legal issues
involved.'” Wilborn, 789 F.2d at
1331(quoting Weygant v. Look, 718 F.2d 952, 954 (9th
Cir. 1983)); see Richards v. Harper, 864 F.2d 85, ...