United States District Court, D. Arizona
Honorable John J. Tuchi, United States District Judge
issue is the Application to Proceed in District Court Without
Prepaying Fees or Costs filed by pro se Plaintiff
Allen Beasley (Doc. 3). Having determined that Plaintiff does
not have the means to pay the Court's fees in this case,
the Court grants the Application. However, as set forth
below, upon screening Plaintiff's Complaint (Doc. 1,
Compl.) pursuant to 28 U.S.C. § 1915(e)(2), the Court
finds that the Complaint fails to state a claim.
28 U.S.C. § 1915(e)(2)
cases in which a party is permitted to proceed in forma
pauperis-that is, the party lacks the means to pay court
fees-Congress provided 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). Section 1915(e)
applies to all in forma pauperis proceedings.
Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000).
“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. at 1127.
Rule 8, Federal Rules of Civil Procedure
complaint must include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Thus, a dismissal for failure to state
a claim can be based on either (1) the lack of a cognizable
legal theory or (2) insufficient facts to support a
cognizable legal claim. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
where a complaint has 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, ” it may be dismissed for failure to satisfy
Rule 8(a). Sparling v. Hoffman Constr. Co., 864 F.2d
635, 640 (9th Cir. 1988). Moreover, “[e]ach allegation
must be simple, concise, and direct.” Fed.R.Civ.P.
Complaint, many of Plaintiff's allegations are not
simple, concise, and direct, as required by Rule 8. Upon
review of the entire Complaint, the Court can discern that
Plaintiff raises claims against the Federal Bureau of
Investigation (FBI) for a violation of his First Amendment
rights, and he identifies as legal authority for his claims
both 42 U.S.C. § 1983 and the Federal Tort Claims Act,
28 U.S.C. §§ 1346, 2671-80 (FTCA). (Compl. at 6,
23.) However, neither statute provides a cognizable legal
theory for Plaintiff's claims.
to state a § 1983 claim, a plaintiff must allege a
state-not federal-action. See Sutton v. Providence St.
Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999).
Here, Defendant FBI is not an agency of state government or
otherwise a state actor. As a result, Plaintiff cannot state
a § 1983 claim against the FBI.
the FTCA generally authorizes suits against the United States
in tort- specifically, for damages resulting from injury or
loss of property, including serious personal injury or death,
caused by the negligent or wrongful act or omission of any
employee of the government acting within the scope of his or
her office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the tort law of the place where
the act or omission occurred. 28 U.S.C. § 1346(b). Here,
Plaintiffs allegations are not in tort but rather in
constitutional law, namely, that the FBI infringed on his
First Amendment rights when it allegedly retaliated against
him after he tried to file an FBI complaint against the City
of Phoenix. Such a claim cannot arise under the FTCA.
Plaintiff cannot cure the defects in his § 1983 and FTCA
claims by amendment, the Court must dismiss the Complaint
without leave to amend. See Lopez, 203 F.3d at 1130.
THEREFORE ORDERED granting Plaintiffs Application to Proceed
in District Court ...