United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine, United States Magistrate Judge
matter is before the Court on its own review. Plaintiff James
Shaffer filed a pro se complaint (Doc. 1). Plaintiff
consented to a magistrate judge (Doc. 7). Plaintiff also
filed an Application to Proceed in District Court Without
Prepaying Fees or Costs (Doc. 2). On November 15, 2019, the
Court granted Plaintiff in forma pauperis status and screened
the Complaint pursuant to 28 U.S.C. § 1915(e)(2) (Doc.
9). The Court dismissed the Complaint for failure to allege
sufficient basis for subject matter jurisdiction
(Id.). The Court provided Plaintiff an opportunity
to amend the complaint by no later than December 18, 2018
(Id.). On January 17, 2019, the Court reinstated
Plaintiff's Complaint and extended the deadline to file
an amended complaint (Doc. 12). The Court reinstated
Plaintiff's Complaint because without appearances and
consent of defendants, there was not full consent for
undersigned to enter dispositive orders. See Williams v.
King, 875 F.3d 500 (9th Cir. 2017). The
deadline to file an amended complaint was later extended to
March 10, 2019 (Doc. 15). Plaintiff did not file an amended
complaint. Therefore, the Court recommends that the Complaint
(Doc. 1) be dismissed without prejudice.
Screening/Review Pursuant to § 1915
plaintiff is found to be indigent under 28 U.S.C. §
1915(a)(1) and is granted leave to proceed in forma pauperis,
courts must engage in screening and dismiss any claims which:
(1) are frivolous or malicious; (2) fail to state a claim on
which relief may be granted; or (3) seek monetary relief from
a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495
(9th Cir. 1996). See also Lopez v. Smith,
203 F.3d 1122, 1126 fn. 7 (9th Cir. 2000) (28
U.S.C. § 1915(e) “applies to all in forma pauperis
complaints, ” not merely those filed by prisoners).
Federal Rule of Civil Procedure (“Fed. R. Civ.
P.”) 8(a)(2) provides that a pleading must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” A complaint that
lacks such statement fails to state a claim and must be
determining whether a plaintiff fails to state a claim, the
court assumes that all factual allegations in the complaint
are true. Parks Sch. of Bus. v. Symington, 51 F.3d
1480, 1484 (9th Cir. 1995). However, “the
tenet that a court must accept a complaint's allegations
as true is inapplicable to legal conclusions [and] mere
conclusory statements.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). The pertinent
question is whether the factual allegations, assumed to be
true, “state a claim to relief that is plausible on its
face.” Id. (citing Twombly, 550 U.S.
complaint contains the factual elements of a cause, but those
elements are scattered throughout the complaint without any
meaningful organization, the complaint does not set forth a
“short and plain statement of the claim” for
purposes of Rule 8, Federal Rules of Civil Procedure.
Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640
(9th Cir. 1988). Further, a complaint may be
dismissed where it lacks a cognizable legal theory, lacks
sufficient facts alleged under a cognizable legal theory, or
contains allegations disclosing some absolute defense or bar
to recovery. See Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988);
Weisbuch v. County of L.A., 119 F.3d 778, 783, fn. 1
(9th Cir. 1997).
survive dismissal, a complaint must give each defendant
“fair notice of what the claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(citation omitted). In the absence of fair notice, a
defendant “should not be required to expend legal
resources to guess which claims are asserted against her or
to defend all claims ‘just in case.'”
Gregory v. Ariz. Div. of Child Support Enforcement,
No. CV11-0372-PHX-DGC, 2011 WL 3203097, at *1 (D.Ariz. July
the complaint has been filed by a pro se plaintiff, as is the
case here, courts must “construe the pleadings
liberally ... to afford the petitioner the benefit of any
doubt.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (citations omitted). Under the
pleading standard set by the Supreme Court's decision in
Iqbal, however, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678. Further, “[a] district court should not dismiss
a pro se complaint without leave to amend unless ‘it is
absolutely clear that the deficiencies of the complaint could
not be cured by amendment.'” Akhtar v.
Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)
(quoting Schucker v. Rockwood, 846 F.2d 1202,
1203-04 (9th Cir. 1988) (per curiam)).
the court dismisses the complaint of a pro se litigant with
leave to amend, the “court must provide the litigant
with notice of the deficiencies in his complaint in order to
ensure that the litigant uses the opportunity to amend
effectively.” Id. (quoting Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992)). “Without the benefit of a statement of
deficiencies, the pro se litigant will likely repeat previous
errors.” Karim-Panahi v. L.A. Police
Dep't, 839 F.2d 621, 624 (9th Cir. 1988)
(quoting Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987)). The court should not, however,
advise the litigant how to cure the defects; this type of
advice “would undermine district judges' role as
impartial decisionmakers.” Pliler v. Ford, 542
U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004).
Deficiencies in the Complaint
Court is a limited jurisdiction court; this federal court has
no jurisdiction beyond that conferred upon it by statute.
Brandt v. Bay City Super Mkt., 182 F.Supp. 937, 939
(N.D. Cal. 1960). Fed.R.Civ.P. 8(a)(1) requires that a
complaint contain a “short and plain statement of the
grounds for the court's jurisdiction.” Further, the
party asserting jurisdiction bears the burden of establishing
jurisdiction. Lew v. Moss, 797 F.2d 747, 749 (9th
Cir. 1986). The United States Supreme Court has stated that a
federal court must not disregard or evade the limits on its
subject matter jurisdiction. Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, the Court
is obligated to evaluate its subject matter jurisdiction in
each case and to dismiss a case when such jurisdiction is
lacking. See Valdez v. Allstate Ins. Co., 372 F.3d
1115, 1116 (9th Cir. 2004); Fed.R.Civ.P. 12(h)(3).
state courts, federal courts only have jurisdiction over a
limited number of cases, and those cases involve either a
question of federal law (federal question jurisdiction) or a
controversy between citizens of different states (diversity
jurisdiction). See 28 U.S.C. §§ 1331,
1332. Plaintiff's complaint does not adequately allege
subject matter jurisdiction as required by Rule 8(a)(1) of
the Federal Rules of Civil Procedure. Plaintiff alleges that
he is seeking judgment “in accordance with all local
and federal law.” This broad statement is inadequate to
assert federal question jurisdiction.
United States Code specifies the requirements for federal
subject matter based on diversity in 28 U.S.C. §1332
(these are set forth in the Court's Order at Doc. 9).
Yet, the Complaint does not address diversity of the parties,
and no amended complaint has been filed. Further, the claims
in the Complaint appear to be based on breach of contract,
and asserted general damages in the complaint are $55, 000,
which is below the diversity jurisdiction threshold.
See 28 U.S.C. §1332. While punitive damages
over the diversity amount are alleged, under the law of most
jurisdictions, punitive damages are not recoverable for
breach of contract claims rather than tort claims. Thus, the
Court will not consider such in determining whether the
Complaint, on its face, establishes subject matter diversity
Court's previous Orders, Plaintiff was given notice as to
the deficiencies in the Complaint. Plaintiff was given ample