United States District Court, D. Arizona
Martha E. Payan, et al., Plaintiffs,
City of Phoenix, et al., Defendants.
K. Duncan United States Magistrate Judge
Order addresses Plaintiff Martha Payan's request to
proceed without the prepayment of fees because of her
indigency, as well as the complaint Plaintiffs filed on June
every case where a Plaintiff seeks to file a case without the
prepayment of fees the Court is required to analyze
plaintiff's complaint to determine whether that complaint
should be dismissed because it is not a case that is properly
brought in federal court. 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff Martha E. Payan alleges she “was
re-victimized by being exposed and having to witness her son
. . . being ‘brutalized'”. Complaint at p. 2.
(Doc. 1) Ms. Payan further alleges “intentional
infliction of Emotional Distress, and “Great
Hardship.” Id. at p. 3. The Court is aware of
no cause of action for “Great Hardship” nor for
being “re-victimized.” The State of Arizona does
recognize a cause of action for intentional infliction of
emotional distress but the deadline by which those claims
must be brought, in other words, the applicable statute of
limitations, is two years after the incident in question.
See A.R.S. § 12-542. Here the Complaint alleges
that the incident took place January 2, 2015, a date more
than two years ago. Thus it appears that any state claims
would be time barred and would have to be dismissed.
not appear that Plaintiff Tommie Payan, Jr. has requested to
proceed without the prepayment of fees because of his
indulgency and thus he would have to pay the filing fee or
submit an application to proceed without the prepayment of
the filing fee. Assuming that Plaintiff Tommie Payan wishes
to proceed without the prepayment of fees, the Court notes
that he alleges “ Intentional Infliction of
Emotional Distress[, ] 2. Gross Negligence[, ] 3. Police
Brutality[, ] 4. Great Hardship[, ] 5. False Imprisonment[, ]
6. Discrimination[, ] 7. Assault and Battery.” Doc. 1
at p. 3. If these seven claims are state law claims they
would also appear to be barred by the applicable statute of
limitations which as set forth above is two years for
injuries to a person except the statute of limitations for
false imprisonment is one year. A.R.S. § 12-541. Any
Section 1983 claim alleging a violation of federal rights
would also have to be brought within the applicable state
statute of limitations. Owens v. Okure, 488 U.S.
235, 240-01 (1989).
Court further observes that if these are indeed state claims
they must be brought in state court absent a showing of
federal court jurisdiction. Although it appears that
Plaintiffs' claims are either time barred or do not
invoke federal court jurisdiction, the Court will grant
Plaintiffs leave to amend their complaint to demonstrate that
these claims are properly brought in federal court.
should understand that the federal courts of the United
States are courts of limited jurisdiction and that
only matters that are authorized under the Constitution or
laws of the United States may be brought in federal court. In
contrast, the state courts are courts of general
jurisdiction and thus most matters are properly heard in
there is federal jurisdiction for this case, Plaintiffs'
complaint must show that this is so. The Federal Rules of
Civil Procedure (available on-line or in any public library)
require that Plaintiffs' complaint must contain “a
short and plain statement of the grounds for the court's
jurisdiction.” Federal Rule of Civil Procedure 8(a)(1).
Again, federal court jurisdiction is limited to matters
arising under the constitution and laws of the United States
(this is called “federal question jurisdiction”)
or cases where citizens of different states are the plaintiff
and defendant and the amount in controversy exceeds $75, 000
(this is called “diversity jurisdiction”). If
Plaintiffs contend that federal question jurisdiction exists,
Plaintiffs must specifically state which Constitutional
provision or federal statute confers such jurisdiction. A
general or non-specific reference to the Constitution or laws
of the United States is insufficient. Moreover, federal
courts are required to respect state court proceedings and
may decline to exercise jurisdiction over matters where a
state court is engaged. Railroad Comm'n of Texas v.
Pullman Co., 312 U.S. 496 (1941). It may well be that
Plaintiffs' grievances may be addressed in the Superior
Court for the State of Arizona or the appellate courts of
to provide Plaintiffs with the opportunity to allege federal
court jurisdiction if Plaintiffs think it exists, the Court
will grant Plaintiffs leave to file an amended complaint. Any
amended complaint must comply with Federal Rule of Civil
Procedure 8(a) and therefore must satisfy the jurisdictional
showing discussed above as well as set forth “a short
and plain statement of the claim showing that [Plaintiffs]
are entitled to relief.” Federal Rule of Civil
Procedure 8(a)(2). Plaintiffs must take care to set forth
specifically which federal statute or provision of the U.S.
Constitution was violated by which defendant.
HEREBY ORDERED that Plaintiffs shall file an amended
complaint complying with this Order within twenty-one (21)
days of the date of this Order. The Court will hold in
abeyance its ruling on the request to proceed without the
prepayment of fees until after it has had the opportunity to
review Plaintiffs' amended complaint. Plaintiffs are
advised that failure to comply with this Order may result in
the dismissal of this matter. Plaintiffs are further advised
that if both are seeking to ...