United States District Court, D. Arizona
Cindy J. Colbert-Hock, Plaintiff,
United States of America, et al., Defendants.
Honorable John J. Tuchi, United States District Judge.
issue is pro se Plaintiff Cindy J.
Colbert-Hock's Amended Complaint (Doc. 36, Compl.), which
she filed pursuant to the Court's order dismissing with
leave to refile her first Complaint (Doc. 17). In this Order,
the Court will also resolve three pending Motions to Join
(Docs. 37, 38, 39).
Court instructed Plaintiff that any Amended Complaint must
meet the requirements of the Federal Rules of Civil
Procedure, but Plaintiff's new Complaint fails to satisfy
those requirements. Therefore, the Court will dismiss
Plaintiff's Amended Complaint with leave to file a Second
Amended Complaint by February 25, 2019, should she elect to
again, the Court finds that Plaintiff's Complaint fails
to satisfy the pleading requirements of Rule 8(a) of the
Federal Rule of Civil Procedures because Plaintiff has not
alleged enough for the Court to conclude it has subject
matter jurisdiction. See Charles Alan Wright &
Arthur R. Miller, 5 Fed. Practice & Procedure
§ 1206 (3d ed. 2014). Despite the Court's
explanation that 42 U.S.C. § 1983 provides for a cause
of action only against state officials who act “under
color of state law, ” Plaintiff still names the United
States as a defendant. Thorton v. City of St.
Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005). The
United States is not a state official and does not act under
color of state law. Plaintiff alludes to Bivens
actions, but those can only be brought against a federal
official-not the United States as a whole. Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971) (holding that federal officials may be sued
for injury to a constitutionally protected interest).
has named state officials in place of the State of Arizona,
but the majority of those state officials may not be sued in
their lawmaking capacity. Legislators are absolutely immune
from suit for conduct that is part of their official duties.
See Bogan v. Scott-Harris, 523 U.S. 44, 48-49
(1998), Supreme Court of Va. v. Consumers Union of the
U.S., Inc., 446 U.S. 719, 732-33 (1980). In other words,
Plaintiff may not sue Arizona state legislators for passing
laws that regulate the prescription and use of opioids.
Governor Doug Ducey and Arizona Attorney General Mark
Brnovich may be named in their official capacities,
Plaintiff's Amended Complaint does not allege how
Defendants Ducey and Brnovich acted under color of state law.
In fact, it does not allege what actions they took at all. In
order to satisfactorily assert subject matter jurisdiction
and to satisfy the pleading requirements under Rule 8(a),
Plaintiff must provide specific allegations against each
listed Defendant. A plaintiff may not collectively accuse
multiple defendants of committing misdeeds through a failure
to attribute any specific act to a specific defendant. Such
group pleading fails to comply with Federal Rule of Civil
Procedure 8(a)(2) because it does not give fair notice of the
claims against each defendant with the requisite specificity.
Riehle v. Bank of America, N. A., No.
CV-12-00251-PHX-NVW, 2013 WL 1694442, at *2 (D. Ariz. Apr.
18, 2013). Plaintiff must allege specifically how Defendants
Ducey and Brnovich violated her constitutional rights by
acting under the color of state law. Until then,
Plaintiff's Amended Complaint fails to satisfy both the
Court's subject matter jurisdiction and the pleading
requirements of the Federal Rules of Civil Procedure.
defective complaint can be cured, the plaintiff is entitled
to amend the complaint before the action is dismissed.
Lopez v. Smith, 203 F.3d 1122, 1127-30 (9th Cir.
2000). Here, the Court will give Plaintiff another
opportunity to amend her Complaint, but any Second Amended
Complaint must meet the requirements of the Federal Rules of
Civil Procedure and the Local Rules, as indicated above.
IS THEREFORE ORDERED that Plaintiffs Amended
Complaint (Doc. 36) is dismissed with permission to file a
Second Amended Complaint by February 25, 2019, that complies
with the provisions of this Order.
IS FURTHER ORDERED that if Plaintiff does not file a
Second Amended Complaint by February 25, 2019, the Clerk
shall dismiss this action without further Order of this
IS FURTHER ORDERED that, in the absence of an
operative Complaint, all pending Motions to Join are moot.
The Motion to Join by Patricia Y. Yost (Doc. 37), the Motion
to Join by Melissa Jane Bazzy (Doc. 38), and the Motion to