Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
Curtis v. Marquez
United States District Court, D. Arizona
October 23, 2018
Adam Josiah Curtis, Plaintiff,
Angela Marquez, Fraternal of Police, and Phoenix Police Department, Defendants.
A. Teilborg, Senior United States District Judge.
September 19, 2018, the Court issued the following order:
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.
In this 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).
Having 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
Next, 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.”).
Finally, 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 allegation.”).
Thus, 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).
As a result,
IT IS ORDERED that the application to
proceed in forma pauperis (Doc. 2) is granted.
IT 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 dismiss this case, ...
Buy This Entire Record For