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Gividen v. Fochesatto

United States District Court, D. Arizona

May 15, 2017

JoAn Ada Gividen, Plaintiff,
v.
Dr. Luciano Fochesatto, M.D., et al. Defendants.

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge

         On March 15, 2017, Plaintiff JoAn Ada Gividen, filed a pro se Complaint (Doc. 1) alleging “medical malpractice, deliberate, malicious, diceitful [sic] imprisonment[, ] [and] intentionally inflected emotional distress.” Compl. (Doc. 1) Plaintiff did not immediately pay the $350.00 civil action filing fee, but filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2).

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, [1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Judge grant Plaintiff's IFP application and dismiss her Complaint (Doc. 1) with leave to amend. . . .

         I. APPLICATION TO PROCEED IN FORMA PAUPERIS

         The Court may allow a plaintiff to proceed without prepayment of fees when it is shown by affidavit that she “is unable to pay such fees[.]” 28 U.S.C. § 1915(a)(1). Plaintiff's statement, made under penalty of perjury, establishes that Plaintiff is unemployed, and she receives disability payments and food stamps. The statement also indicates that Plaintiff has no assets. The Court finds Plaintiff is unable to pay the fees. The Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) should be granted.

         II. STATUTORY SCREENING OF PLAINTIFF'S COMPLAINT

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

         A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief[.]” Rule 8(a), Fed.R.Civ.P. While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Where the pleader is pro se, however, the pleading should be liberally construed in the interests of justice. Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Nonetheless, a complaint must set forth a set of facts that serves to put defendants on notice as to the nature and basis of the claim(s). See Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995).

         A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Hebbe, 627 F.3d at 342 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002). “Given the Federal Rules' simplified standard for pleading, ‘[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'” Id. at 514, 122 S.Ct. at 998 (quoting Hison v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)) (alterations in original); see also Johnson, et al. v. City of Shelby, Mississippi, __ U.S. __, 135 S.Ct. 346, 346 (2014) (“Federal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted”).

         If the 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). The Court should not, however, advise the litigant how to cure the defects. This type of advice “would undermine district judges' role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies).

         III. COMPLAINT

         Plaintiff's Complaint alleges that “Dr. Fochesatto, caused plaintiff A-fib and permanent lung damage in a very nasty hospital in Douglas AZ [sic] that has been closed for being nasty by the health department.” Compl. (Doc. 1) at 2. Plaintiff seeks “one billion dollars cash within thirty (30) days because they have shortened Plaintiffs [sic] very life.” Id. at 2.

         IV. FAILURE TO STATE A CLAIM

         A. ...


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