United States District Court, D. Arizona
K. Jorgenson, Judge
Edgar Moreno ("Moreno") has filed a Formal
Complaint (Doc. 16). The Court accepts this “Formal
Complaint” as a First Amended Complaint
(“FAC”). Additionally, pending before the Court
are the Motion to Expedite Case (Docs. 18 and
the Formal Complaint Phoenix Police Department (Doc. 20), the
Motion on Time Limitation in Order to Amend Complaint Seeking
30 Day Extension (Doc. 21), Notices (Docs. 22, 25, 26, 33and
35), the Motion for Court to Intervene (Doc. 23 and 24), the
Memorandum Re: Formal Complaint (Doc. 27), the Motion to File
Documentation to Make Case Stand (Doc. 28), the Motion
Requesting Federal Courts Intervention in State Criminal
Cases (Docs. 29 and 30), the Motion to Proceed and Provide
Copies of All Events Information to All Parties Involved
(Doc. 31), the Motion for Status (Doc. 34), the Motion to
File Any and All Relevant Documentation (Doc. 36), and the
Motion to Amend Claim of Persecution; Formal Complaint for
Prosecutorial Misconduct with Malicious Intent (Doc. 37).
Court previously screened the original complaint filed in
this case. In that screening order, the Court advised
Plaintiffs must clearly designate on the face of the document
that it is the "First Amended Complaint." The first
amended complaint must be retyped or rewritten in its
entirety and may not incorporate any part of the original
Complaint by reference. Plaintiffs may include only one claim
A first amended complaint supersedes the original complaint.
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
1992); Hal Roach Studios v. Richard Feiner &
Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After
amendment, the Court will treat an original complaint as
nonexistent. Ferdik, 963 F.2d at 1262. Any cause of
action that was raised in the original complaint and that was
voluntarily dismissed or was dismissed without prejudice is
waived if it is not alleged in a first amended complaint.
Lacey v. Maricopa County, 693 F.3d 896, 928 (9th
Cir. 2012) (en banc).
(Doc. 10. at 14). The caption of the FAC appears to omit the
names of some parties, see Fed.R.Civ.P. 10(a)
(“The title of the complaint must name all the
parties[.]”). Indeed, the FAC does not state any
plaintiff other than Moreno nor any defendant other than the
Cochise County Jail. Although the caption includes the phrase
“et al.” as to both plaintiffs and defendants,
there is no indication in the FAC who any other parties may
be. Moreno's mentioning of specific individuals in other
documents (see e.g. Doc. 27-1, p. 1) does not make
them a party to the action. The Court accepts the FAC as
stating only Moreno and the Cochise County Jail as parties.
caption states the document is a complaint “for
unnecessarry (sic), mismanaged, and; unresonable (sic) or
excessive use of authority, force information, and, or;
power[, ] inflicting cruel and unusual punishment[, ] pain
and suffering.” (Doc. 16 at 1.) The Court will accept
the FAC as seeking to state claims for excessive force, abuse
of power, and cruel and unusual punishment.
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). Therefore, the
Court will screen the FAC (Doc. 16).
Moreno has filed supplemental documents which the Clerk of
Court has docketed as a Memorandum Re: Formal Complaint (Doc.
27). Moreno has also filed a Formal Complaint Phoenix Police
Department (Doc. 20) and a Motion to Amend Claim of
Persecution; Formal Complaint for Prosecutorial Misconduct
with Malicious Intent (Doc. 37). To any extent Moreno is
seeking to state additional claims with the filing of the
supplemental documents (Docs. 20, 27, and 37), the Court
advises Moreno that all claims must be included in a single
complaint. In other words, as Moreno has not stated that he
seeks one of the alternate documents to supersede the FAC,
the FAC is the operative complaint that will be screened
Court previously stated, the United States Supreme Court has
determined that, in order to survive a motion to dismiss for
failure to state a claim, a plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its facts.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). While a complaint
need not plead “detailed factual allegations, ”
the factual allegations it does include “must be enough
to raise a right to relief above the speculative
level.” Id. at 555. Indeed, Fed.R.Civ.P.
8(a)(2) requires a showing that a plaintiff is entitled to
relief “rather than a blanket assertion” of
entitlement to relief. Id. at 555 n. 3. The
complaint “must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a
legally cognizable right to action.” Id. at
555. Although a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), has not been filed in this case, the Court
considers these standards in screening the FAC to determine
if Moreno has “nudge[d] [his] claims across the line
from conceivable to plausible.” Id. at 570.
discussing Twombly, the Ninth Circuit has stated:
“A claim has facial plausibility, ” the Court
explained, “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
129 S.Ct. at 1949. “The plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556, 127 S.Ct. 1955). “Where a complaint
pleads facts that are ‘merely consistent with' a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557, 127 S.Ct. 1955).
In sum, for a complaint to survive a motion to dismiss, the
non-conclusory “factual content, ” and reasonable
inferences from that content, must be plausibly suggestive of
a claim entitling the plaintiff to relief. Id.
Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir.
Court must take as true all allegations of material fact and
construe them in the light most favorable to Moreno. See
Cervantes v. United States, 330 F.3d 1186, 1187 (9th
Cir. 2003). In general, a complaint is construed favorably to
the pleader. See Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on
other grounds, 457 U.S. 800. Nonetheless, the Court does
not accept as true unreasonable inferences or conclusory
legal allegations cast in the form of factual allegations.
Western Mining Council v. Watt, 643 F.2d 618, 624
(9th Cir. 1981). Furthermore, the Court is not to serve as an
advocate of a pro se litigant, Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in
attempting to decipher a complaint.
court determines that dismissal is appropriate, a plaintiff
must be given at least one chance to amend a complaint when a
more carefully drafted complaint might state a
claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.
1991). Moreover, when dismissing with leave to amend, a court
is to provide reasons for the dismissal so a plaintiff can
make an intelligent decision whether to file an amended
complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th
Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th
Cochise County Jail is a Non-Jural Entity
agencies that may sue and be sued are known as jural
entities; non -jural entities are not subject to suit.”
Morgan v. Arizona, 2007 WL 2808477, * 8
(D.Ariz.2007) (citations omitted). An action cannot be
brought against a state or county agency that lacks the
authority to sue and be sued. See, Gotbaum ex rel.
Gotbaum v. City of Phoenix, 2008 WL 4628675, *7
(D.Ariz.2008); see also Braillard v. Maricopa
County, 224 Ariz. 481, 487, ¶ 12, 232 P.3d 1263,
1269 (App. 2010) (citations omitted) (“Governmental
entities have no inherent power and possess only those powers
and duties delegated to them by their enabling statutes.
Thus, a governmental entity may be sued only if the
legislature has so provided.”).
Arizona Legislature has not authorized the Cochise County
Jail to sue or be sued. Compare A.R.S. §
11-201(A)(1) (counties, through their board of supervisors,
are granted authority to sue and be sued). As the Cochise
County Jail is a non-jural entity, dismissal is appropriate.
See e.g. Gotbaum v. City of Phoenix, 617 F.Supp.2d
878, 886 (D. Ariz. 2011) (dismissing a city police department
as a nonjural entity; because associated jural entity was
also sued, dismissal will not deprive plaintiffs of remedy to
which they are entitled); Payne v. Arpaio,
CV09-1195-PHX-NVW, 2009 WL 3756679, *4-5 (D. Ariz. 2009)
(dismissing a county sheriff's department and a county
health services department as nonjural entities); Austin
v. State, CV-08-1222-PHX-LOA, 2008 WL 4368608, *5 (D.
Ariz. 2008) (dismissing a state department of juvenile
corrections as a nonjural entity); Braillard v. Maricopa
County, 224 Ariz. 481, 487, ¶ 12, 232 P.3d 1263,
1269 (App. 2010) (citations omitted) (Governmental entities
have no inherent power and possess only those powers and
duties delegated to them by their enabling statutes. Thus, a
governmental entity may be sued only if the legislature has
so provided.). Dismissal with leave to amend to name the
associated jural entity is appropriate. Simons v.
Maricopa Medical Center, 225 Ariz. 55, 59, 234 P.3d 623,
627 (App. 2010). Alternatively, Moreno may seek to state 42
U.S.C. § 1983 claims against specific officers. See
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699
(9th Cir. 1990) (to state a claim under § 1983, a
plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States and the alleged
deprivation was committed by a person action under color
of state law).
Moreno has not alleged civil rights claims against any
specific officer, the Court finds it appropriate to discuss
the possible claims so Moreno can make an intelligent
decision whether to allege § 1983 claims in a Second
Amended Complaint. Bonanno.