United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Application to Proceed in
District Court Without Prepaying Fees or Costs (Doc. 2).
28 U.S.C. Â§ 1915(e)(2)
provided with respect to in forma pauperis cases that a
district court "shall dismiss the case at any time if
the court determines" that the "allegation of
poverty is untrue" or that the "action or
appeal" is "frivolous or malicious, "
"fails to state a claim on which relief may be granted,
" or "seeks monetary relief against a defendant who
is immune from such relief." 28 U.S.C. §
1915(e)(2). While much of section 1915 outlines how prisoners
can file proceedings in forma pauperis, section 1915(e)
applies to all in forma pauperis proceedings, not just those
filed by prisoners. Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000)("section 1915(e) applies to all in
forma pauperis complaints"). "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. Therefore, this court must
dismiss an in forma pauperis complaint if it fails to state a
claim or if it is frivolous or malicious. …
Rule 8, Federal Rules of Civil
must be stated clearly enough to enable a defendant to frame
a responsive pleading. A complaint must contain "a short
and plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a). "Each
averment of a pleading shall be simple, concise, and
direct." Fed.R.Civ.P. 8(e)(1). A complaint having the
factual elements of a cause of action present but scattered
throughout the complaint and not organized into a "short
and plain statement of the claim" may be dismissed for
failure to satisfy Rule 8(a). Sparling v. Hoffman Constr.
Co., 864 F.2d 635, 640 (9th Cir. 1988).
v. Andrews, 2005 WL 3358205, *2-*3 (D. Ariz. 2005).
construing the complaint, the Court finds that 28 U.S.C.
§ 1915 is satisfied as to Defendant 1, T. Allen #2210,
as to Counts 1-4 and 6. Count 5 charges violations of Arizona
criminal statutes. (Doc. 1 at 7-8). Plaintiff, as an
individual, cannot bring charges for violations of Arizona
criminal statutes. Accordingly, Count 5 will be dismissed.
Defendant 2, unknown police officer, the totality of the
allegations in the complaint are: “Around 5:57 a.m.
… Defendant #1 started looking at his cell
phone…. At about the same time Defendant #2 walked
from Burger King to Extra Space….” (Doc. 1 at
5). This alleged walk by Defendant #2 is inadequate to state
a claim against Defendant #2. Accordingly, Defendant #2 will
be dismissed, without prejudice.
IS ORDERED GRANTING the application for leave to
proceed in forma pauperis (Doc. 2), without prepayment of
costs or fees or the necessity of giving security therefor.
Service by waiver or service of the summons and complaint
shall be at government expense on the defendant by the U.S.
Marshal or his authorized representative. The Court directs
(1) The Clerk of Court must send Plaintiff a service packet
including the Complaint (Doc. 1), this Order, and both
summons and request for waiver forms ...