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Brewer v. Viallard

United States District Court, D. Arizona

April 20, 2017

Jason Brewer, Plaintiff,
v.
Barbara Viallard, et al., Defendants.

          ORDER

          Eileen S. Willett United States Magistrate Judge

         Pending before the Court is Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs (Doc. 2). For good cause shown, the Application is granted and Plaintiff is allowed to proceed in forma pauperis. The Court, however, must screen the Complaint (Doc. 1) before it is allowed to be served. 28 U.S.C. § 1915(e)(2). As the Ninth Circuit Court of Appeals has explained, "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 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

         I. DISCUSSION

         A. Screening an In Forma Pauperis Complaint

         Pursuant to 28 U.S.C. §§ 1915(e)(2)(A) and (B), the Court must dismiss a case if the Court determines that (i) the allegation of poverty is untrue; (ii) the action is frivolous or malicious; (iii) the action fails to state a claim on which relief may be granted; or (iv) if the plaintiff seeks monetary relief against a defendant who is immune from such relief.

         Federal Rule of Civil Procedure 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." In addition, Federal Rule of Civil Procedure 10(b) requires a party to "state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances."

         "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief" Id. (quoting Twombly, 550 U.S. at 557). In addition, legal conclusions couched as factual allegations are not given a presumption of truthfulness and "conclusory allegations of law and unwarranted inferences" are not sufficient. Pareto v. F.D.I.C, 139 F.3d 696, 699 (9th Cir. 1998). 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. Paciflca Police Dept, 901 F.2d 696, 699 (9th Cir. 1988) ("Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."); Weisbuch v. County of L.A., 119 F.3d 778, 783, n.l (9th Cir. 1997) ("If the pleadings establish facts compelling a decision one way, that is as good as if depositions and other expensively obtained evidence on summary judgment establishes the identical facts.").

         B. Analysis

         1. Plaintiff's Allegations in the Complaint

         In his Complaint, Plaintiff alleges that his child was removed from Plaintiff's custody for a four-month period "under false Pretenses and Allegations made by [Department of Child Safety ("DCS")] employee's [sic] Scott Alexander and Barbara Viallard." (Doc. 1 at 2). Plaintiff states that the case against him was dismissed and his child was returned to him. (Id.). However, Plaintiff asserts that "because of the false allegations" made by Defendant Alexander, he and the child's mother decided to separate, "which caused [Plaintiff] to relocate to another state where [he] worked." (Id.). But because Plaintiff "was not allowed to leave the state of Arizona with [his] child, " Plaintiff "had to relocate back to Arizona causing [him[ to lose [his] financial source of income and home." (Id.). Plaintiff states that because he "was told" by case manager Barbara Villard that his son could not return to the home of his son's mother, Plaintiff arranged for his son and himself to stay with his son's grandmother. (Id.). Plaintiff "was told" that he could not "stay with [his] son because of space at the residence." (Id.). After two months, the DCS "again tried at (another court proceeding) to remove [his] son from [his] care stating that [he] was unstable and unfit and couldn't provide for [his] child." (Id.). Plaintiff asserts that "[t]he judge at that time stated that she had dismissed the case and [he] was allowed to take and live wherever [he] choose [sic] to" and that "it was also stated to the department that they had no legal right to do say or act in the manner in which they did after an order was set." (Id.).

         Plaintiff alleges that he (i) "was subject to slander" by DCS and the Defendant DCS employees; (ii) "became homeless, financially, mentally and emotionally burdened"; (iii) that he and his son "have been traumatized by this entire proceeding"; and (iv) that he and his son's "4th & 14th Amendment rights have been violated." (Id. at 3). Plaintiff seeks compensation in the amount of $3, 000, 000. (Id.).

         2. Failure to Adequately Plead Jurisdictional Basis

         Because federal courts are courts of limited jurisdiction, a case presumably lies outside the jurisdiction of the federal courts unless proven otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Court is obligated to determine sua sponte whether it has subject matter jurisdiction. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

         Although the Complaint alleges a violation of Plaintiffs Fourth and Fourteenth Amendment rights, a litigant does not have a cause of action directly under the United States Constitution. Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) ("Plaintiff has no cause of action directly under the United States Constitution."); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) (explaining that 42 U.S.C § 1983 was enacted to create a private cause of action for violations of the United States Constitution). The Court finds that Plaintiff has not adequately alleged a jurisdictional basis in his Complaint. Although it appears that Plaintiff may be seeking to bring an action under 42 U.S.C. § 1983, the Court cannot assume subject-matter jurisdiction. Moore v. Maricopa County Sheriff's Office,657 F.3d 890, 893-95 (9th Cir. 2011) (stating that "[a] federal court cannot assume subject-matter jurisdiction to reach the merits of a case" and explaining that where a district court determines that it does not have subject matter jurisdiction, "it is not possible for the district court" to have dismissed alternatively for failure to state a claim); Herrera- Castanola v. Holder, 528 F.App'x 721, 722 (9th Cir. 2013) ("Because we must address whether the district court ...


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