United States District Court, D. Arizona
David W. Linder, Plaintiff,
Drug Enforcement Agency, et al., Defendants.
G. Campbell Senior United States District Judge.
February 16, 2018, Plaintiff David W. Linder, who is confined
in the Federal Correctional Institution-Pekin in Pekin,
Illinois, filed a Complaint and an “Affidavit
Accompanying Motion for Permission to Appeal In Forma
Pauperis.” In a February 27, 2018 Order, the Court
denied the Motion for Permission and dismissed the Complaint
because neither the Motion nor Complaint was filed on a
court-approved form, as required by Local Rule of Civil
Procedure 3.4. The Court gave Plaintiff 30 days to (1) either
pay the filing and administrative fees or file a complete
Application to Proceed In Forma Pauperis, and (2) file a
first amended complaint on a court-approved form.
March 26, 2018, Plaintiff paid the filing and administrative
fees and filed an Affidavit in Support, a Request for
Judicial Notice, and a First Amended Complaint. On April 11,
2018, he filed an Appendix. On April 30, 2018, Plaintiff
filed a Motion for Order for Service by Marshal. . . . .
June 18, 2018 Order, the Court dismissed the First Amended
Complaint for failure to state a claim, gave Plaintiff 30
days to file a second amended complaint that cures the
deficiencies identified in the Order, and denied without
prejudice the Request for Judicial Notice and Motion for
Order for Service by Marshal. That same day, Plaintiff filed
a “Motion for Extension of Time Pursuant to Fed R Civ P
4(m), ” which the Court denied as premature in a July
3, 2018 Order.
23, 2018, Plaintiff filed his Second Amended Complaint. In a
September 18, 2018 Order, the Court dismissed the Second
Amended Complaint because Plaintiff had failed to comply with
Rule 8 of the Federal Rules of Civil Procedure. The Court
gave Plaintiff 30 days to file a third amended complaint that
cured the deficiencies identified in the Order. In an October
31, 2018 Order, the Court denied Plaintiff's
“Request for (5) Day Extension, but granted Plaintiff a
30-day extension of time to file his third amended complaint.
November 1, 2018, Plaintiff filed his Third Amended Complaint
(Doc. 20). The Court will dismiss the Third Amended Complaint
and this action.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
an employee of a governmental entity. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion
thereof if a plaintiff has raised claims that are legally
frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While
Rule 8 does not demand detailed factual allegations,
“it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Thus, although a plaintiff's specific factual allegations
may be consistent with a constitutional claim, a court must
assess whether there are other “more likely
explanations” for a defendant's conduct.
Id. at 681.
the United States Court of Appeals for the Ninth Circuit has
instructed, courts must “continue to construe pro
se filings liberally.” Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed
by a pro se prisoner] ‘must be held to less stringent
standards than formal pleadings drafted by
lawyers.'” Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
Third Amended Complaint
three-count Third Amended Complaint, Plaintiff asserts that
the Court has jurisdiction over his claims under the Federal
Tort Claims Act (FTCA). He seeks monetary damages from
Defendants United States of America, Drug Enforcement Agency
Officers Justin Schoeman and Timothy Jenkins, former
Assistant United States Attorney Laura Pelatiro Tayman, and
“NCIS” Officer Robert D. Cully, Jr.
Count One, Plaintiff asserts that there was a
“conversion” of his automobile. He claims that in
December 2003, his automobile was taken “without
probable cause of any crime.” He claims no arrest was
made, no contraband was discovered, and the vehicle had been
purchased with “untainted funds.” He ...