United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Plaintiff's application to proceed in
forma pauperis. (Doc. 2). The application will be granted. In
28 U.S.C. § 1915(e)(2),
Congress 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.
A claim 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).
Kennedy v. Andrews, 2005 WL 3358205, *2-*3 (D. Ariz.
case, Plaintiff appears to be complaining about actions
Defendant Angela Marquez took in a child custody proceeding
in California and about the Phoenix police refusing to file a
report about an alleged car accident and an alleged
poisoning. With respect to the Fraternal Order of Police,
Plaintiff states (quoted in its entirety) “I believe
the Fraternal Order of Police nationwide had [sic] helped to
foster this system of care and concern over the Marquez'
interests.” (Doc. 1 at 2).
reviewed the complaint, the Court finds that the claims
against Angela Marquez are either frivolous or malicious.
See 28 U.S.C. § 1915(e)(2). Moreover, this
Court does not sit as an appellate court over the California
state courts. Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 283-284 (2005) (“The
Rooker- Feldman doctrine [requires the federal court
to dismiss for want of subject matter jurisdiction] cases
brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments.”).
with respect to the Phoenix Police Department, the department
is not a jural entity that can sue and be sued and, thus, is
not a proper defendant. See Gotbaum v. City of
Phoenix, 617 F.Supp.2d 878, 886 (D. Ariz. 2008)
(…“the Court concludes that the Phoenix Police
Department is a subpart of the City of Phoenix, not a
separate entity for purposes of suit.”).
the single claim against the Fraternal Order of Police is too
vague to state a claim. See Bell Atlantic Corporation v.
Twombly, 550 U.S. 544 (2007). Moreover, it appears to be
fanciful or delusional. See Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“As the Courts of Appeals have
recognized, § 1915(d)'s term ‘frivolous,'
when applied to a complaint, embraces not only the inarguable
legal conclusion, but also the fanciful factual
the complaint in this case will be dismissed without
prejudice as to each defendant for the reasons stated above.
Plaintiff will be given an opportunity to amend the
complaint. If the amended complaint does not cure these
deficiencies, this case will be dismissed consistent with 28
U.S.C. § 1915(e).
result, IT IS ORDERED that the application
to proceed in forma pauperis (Doc. 2) is granted.
IS FURTHER ORDERED that the complaint is dismissed,
without prejudice. Plaintiff has 30 days to file an amended
complaint. If no amended complaint is filed in 30 days, the
Clerk of the Court shall ...