United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
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).
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
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. . . .
APPLICATION TO PROCEED IN FORMA PAUPERIS
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.
STATUTORY SCREENING OF PLAINTIFF'S COMPLAINT
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).
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).
“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
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
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.
FAILURE TO STATE A CLAIM