United States District Court, D. Arizona
Andre H. Ali, Plaintiff,
Scotia Group Management LLC, Defendant.
HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE.
March 27, 2018, the Court granted Ali's Application to
Proceed without Prepaying Fees or Costs. (Doc. 6.) The Court
also screened Ali's complaint pursuant to 28 U.S.C.
§ 1915(e)(2) and dismissed the complaint with leave to
amend for failure to demonstrate federal jurisdiction and for
failure to state a claim. (Id.) The Court granted
Ali thirty days from the March 27, 2018 filing date of its
Order to file an amended complaint.
Amended Complaint was due on April 26, 2018. On April 6,
2018, Ali filed a form for a complaint that he titled
“Income Statement.” (Doc. 7.) Ali did not set
forth any statement of a claim or request for relief. He
attached forms pertaining to Social Security Retirement,
Survivors, and Disability Insurance for someone named Andre
De Shawn High. On May 9, 2018, Ali filed an Amended
Complaint. (Doc. 8). In light of Ali's pro se
status and the short delay between the April 26, 2018 due
date for the Amended Complaint and the May 9, 2018 filing,
the Court will accept Ali's late filing. However, in the
future, if Ali is unable to comply with deadlines set by the
Court or the rules, he must seek leave of Court to extend the
time to comply as set forth at Rule 6(b) of the Federal Rules
of Civil Procedure. Cf. Ghazali v. Moran, 46 F.3d
52, 54 (9th Cir. 1995) (“pro se
litigants are bound by the rules of procedure”);
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)
(“Pro se litigants must follow the same rules
of procedure that govern other litigants.”),
overruled on other grounds by Lacey v. Maricopa County,
693 F.3d 896 (9th Cir. 2012).
to 28 U.S.C. § 1915(e)(2), the Court will screen the
Amended Complaint. Under § 1915(e)(2), the Court must
dismiss the Amended Complaint if the Court determines that
the Amended Complaint is frivolous or malicious, fails to
state a claim upon which relief may be granted; or seeks
monetary relief from an individual who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). For the
following reasons, the Court will dismiss Ali's Amended
Complaint with leave to amend.
Plaintiff's Amended Complaint
Court previously advised Ali that a complaint is to contain
“[a] ‘short and plain statement of the claim
showing that the pleader is entitled to relief[.]'”
(Doc. 6 at (quoting Fed.R.Civ.P. 8(a)(2)). Where the pleader
is pro se, the “[p]leadings should be liberally
construed in the interests of justice.” Johnson v.
Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975).
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). Furthermore, all allegations of a claim are
to be set forth in numbered paragraphs that should be limited
to a single set of circumstances. Fed.R.Civ.P. 10(b).
“[E]ach claim founded on a separate transaction or
occurrence . . . must be stated in a separate count . . .
.” Id. Failure to set forth claims in such a
manner places the onus “on the court to decipher which,
if any, facts support which claims, as well as to determine
whether . . .” a plaintiff is entitled to the relief
sought. Haynes v. Anderson & Strudwick, Inc.,
508 F.Supp. 1303, 1307 n.1 (D.C. Va. 1981).
“Enforcement of this rule is discretionary with the
Court, but such enforcement is appropriate where it is
necessary to facilitate a clear presentation of the
claims.” Ramage v. United States, 2014 WL
4702288 at *1 (D. Ariz. 2014) (citing Benoit v. Ocwen
Financial Corp., Inc., 960 F.Supp. 287, 289 (S.D. Fla.
1997), affirmed 162 F.3d 1177 (compliance with rule
mandatory where allegations were so confounding and
conclusory, claims were commingled, and unfeasible to
decipher nature of claims)).
court determines that dismissal is appropriate, the plaintiff
must be given at least one chance to amend a complaint when a
more carefully drafted complaint might state a claim.
Cook, Perkiss and Liehe, Inc. v. Northern Cal. Collection
Serv. 911 F.2d 242, 247 (9th Cir. 1990) (“district
court should grant leave to amend [the complaint] even if no
request to amend the pleading was made, unless it determines
that the pleading could not possibly be cured by the
allegation of other facts.”). Moreover, when dismissing
with leave to amend, the 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, 322 (9th Cir. 1962).
Requirement that Action State a Claim on Which Relief Can be
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 face. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (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 (quoting 5 C. Wright
& A. Miller, Federal Practice and Procedure
§ 1216, pp. 235-236 (3d ed. 2004)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(interpreting Rule 8(a) and explaining that there must be
specific, non-conclusory factual allegations sufficient to
support a finding by the court that the claims are more than
merely possible, they are plausible). Although a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6) has not been filed
in this case, the Court screens the Amended Complaint in
light of Twombly and must determine whether Ali has
“nudge[d] [his] claims across the line from conceivable
to plausible . . . .” Twombly, 550 U.S. at
555. The Court also considers that the Supreme Court has
cited Twombly for the traditional proposition that
“[s]pecific facts are not necessary [for a pleading
that satisfies Rule 8(a)(2)].” Erickson v.
Pardue, 551 U.S. 89, 93 (2007). Instead, a statement
must “‘give the defendant fair notice of what the
. . . claim is and the grounds upon which it
rests.'” Id. at 93 (quoting
Twombly, 550 U.S, at 555).
discussing Twombly, the Ninth Circuit has stated
that “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “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). “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). 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. Iqbal, 556 U.S. at 678; see also Moss v.
U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
general, a complaint is construed favorably to the
pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800 (1982). This Court must take as
true all allegations of material fact and construe them in
the light most favorable to Ali. See Cervantes v. United
States, 330 F.3d 1186, 1187 (9th Cir. 2003).
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), superseded by statute as stated in Akhtar v.
Mesa, 698 F.3d 1202 (9th Cir. 2012), in attempting to
decipher a complaint.
Failure to comply with Rule 8(a), F.R.C.P.
originally filed this action against Scotia Group Management
LLC (Scotia). Scotia was included in the caption, but not
named in the body of the Amended Complaint. In the body of
the Amended Complaint, Ali identifies the following
Defendants: “Tucson Police/Tucson City Court”,
State of Arizona Department of Economic Security, ECMC debt
collection, U.S. Department of the Treasury, City of Tucson
Risk Management, U.S. Department of Education, attorney
Matthew D. Koglmeier, and ...