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Ellis v. Circle K Corporation
United States District Court, D. Arizona
December 21, 2018
Gregory Micheal Ellis, Plaintiff,
Circle K Corporation, et al., Defendants.
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
December 18, 2018, the Court issued the following Order:
CV 18-1842-PHX-JAT was previously pending before this Court.
That case was, as far as this Court has determined, virtually
identical to this case. In that case, this Court, after
giving Plaintiff two opportunities to amend the complaint,
dismissed the case (without prejudice). Specifically, this
Court issued the following Orders:
On June 14, 2018, the Court issued the following Order:
Pending before the Court is Plaintiff's application to
proceed in forma pauperis. “Inquiring whether the court
has jurisdiction is a federal judge's first duty in every
case.” Belleville Catering Co. v. Champaign Market
Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003). In
this case, Plaintiff's “complaint” is
actually two separate complaints run together as a single
document. (Doc. 1).
In complaint 1, Plaintiff alleges jurisdiction based on
diversity. (Doc. 1 at 3). However, Plaintiff fails to plead
the citizenship of any party. See generally Caterpillar
v. Lewis, 386 U.S. 523, 531 (1996). Further, the address
listed for every party is in Arizona.
In complaint 2, Plaintiff alleges federal question
jurisdiction. In this complaint, Plaintiff leaves blank all
sections on federal question jurisdiction. (Doc. 1 at 8). On
this record, Plaintiff has failed to allege federal question
Based on the foregoing, Plaintiff has failed to allege or
establish federal subject matter jurisdiction. Therefore,
IT IS ORDERED that by June 28, 2018,
Plaintiff shall file an amended (single) complaint properly
alleging federal subject matter jurisdiction or this case
will be dismissed, without prejudice.
On June 28, 2018, the Court issued the following Order:
On June 15, 2018, Plaintiff filed a single amended complaint.
In this amended complaint, Plaintiff alleges jurisdiction
based on federal question, specifically “United States
Code Title 42, Chapter 21[.]” (Doc. 10 at 3). Under
Plaintiff's statement of claim he states, (quoted in its
entirety) “Racial Discrimination, Defamation of
Character, Harassment, and Denial of Public Services due to
Race.” (Doc. 10 at 4). Plaintiff also made a demand of
“Five Million Dollars”. (Doc. 10 at 4). The Court
has quoted all of Plaintiff's allegations in his amended
As the Court noted in its prior Order, Plaintiff seeks to
proceed in forma pauperis.
A. 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] complaint, containing both factual allegations and
legal conclusions, is frivolous where it lacks an arguable
basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Furthermore, "a
finding of factual frivolousness is appropriate when the
facts alleged rise to the level of the irrational or wholly
incredible, whether or not there are judicially recognized
facts available to contradict them." Denton v.
Hernandez, 504 U.S. 25, 33 (1992). "A case is
malicious if it was filed with the intention or desire to
harm another." Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005).
B. Rule 8, Federal Rules of Civil Procedure
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).
In order to assist litigants to understand the Rule 8(e)
requirements that averments "be simple, concise, and
direct," Rule 84 of the Federal Rules of Civil Procedure
provides samples in an Appendix of Forms, which are
"intended to indicate the simplicity and brevity of
statement which the rules contemplate." McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). An example is
Form 9 (Complaint for Negligence):
1. Allegation of jurisdiction
2. On June 1, 1936, in a public highway called Boylston
Street in Boston, Massachusetts, defendant negligently drove
a motor vehicle against plaintiff, who was then crossing said
3. As a result plaintiff was thrown down and had his leg
broken, and was otherwise injured, was prevented from
transacting his business, suffered great pain of body and
mind, and incurred expenses for medical attention ...
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