United States District Court, D. Arizona
ORDER
Honorable David C. Bury, United States District Judge.
For the
reasons stated by the Court in its Order issued July 23, 2019
(Doc. 9), this case is dismissed for lack of subject matter
jurisdiction. This Court dismissed the case, with leave for
the Plaintiff to file an Amended Complaint to state a federal
claim for relief. Assuming the Plaintiff intended the
“Response for a More Short Plain Statement”
(Response) (Doc. 10) or the “Amended Jurisdiction as
Requested by Federal Court” (Amended Jurisdiction)
(Doc. 11) to be, singularly or together, the Amended
Complaint, he fails again to allege facts sufficient to
invoke federal jurisdiction. For the same reasons explained
in the July 23 Order, the Court concludes that it lacks
subject matter jurisdiction over this case. See
(Order (Doc. 9) (citing Fed.R.Civ.P. 12(h)(3) explaining the
Court must dismiss an action any time it determines it lacks
subject-matter jurisdiction). The addition of alleged
violations of state and federal criminal statutes, likewise,
fail to state a federal cause of action. “[I]n American
jurisprudence . . . a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another.” Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973). Plaintiff, a private citizen lacks standing
to enforce the United States and/or Arizona criminal codes.
In other words, enforcement authority over criminal codes
lies with either the federal or state government,
respectively. Morgan v. Kalaco Scientific, Inc.,
2008 WL 11449239 (March 5, 2008).
Dismissals
for lack of subject matter jurisdiction are without prejudice
because there is no adjudication on the merits. Freeman
v. Oakland Unified Sch. Dist., 179 F.3d 846, 847
(9th Cir. 1999). “Dismissals for lack of
jurisdiction should be without prejudice so that a plaintiff
may reassert his claims in a competent court.”
Id. The Court denies the Defendants' Motion to
Dismiss with Prejudice.
In
part, the Defendants seek dismissal with prejudice as a
sanction for Plaintiff's failure to comply with the
Court's directive to comply with Rule 8 requirements to
state a claim clearly and with specificity, if the Plaintiff
intended the Response (Doc. 10) and/or the “Amended
Jurisdiction as Requested by Federal Court” (Doc. 11)
to be the Amended Complaint. The Court's July 23, 2019,
expressly stated that “THE AMENDED COMPLAINT MUST BE
CLEARLY DESIGNATED AS ‘AMENDED COMPLAINT' ON THE
FACE OF THE DOCUMENT.” Neither the Response nor the
Amended Jurisdiction documents were clearly designated
“Amended Complaint.” The Plaintiff is pro
se, and as such may be prone to make errors in pleading
more than the person who has the benefit of being represented
by counsel, Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987), but there is nothing complicated or
confusing about the Court's directive to clearly
designate the Amended Complaint as such. In the event the
Plaintiff has failed to file an Amended Complaint, the case
is subject to dismissal pursuant to the Court's July 23,
2019, Order. Dismissal is for lack of subject matter
jurisdiction and without prejudice.
To the
extent the Defendants suggest the Court should exercise
jurisdiction and rule on the merits because the Plaintiff may
be stating a constitutional claim, the Defendants'
argument is self-defeating. Defendants note that the
Plaintiff could state a claim under 42 U.S.C. § 1983 for
illegal seizure under the Takings Due Process Clauses, and
the Court adds the Fourth Amendment to the United States
Constitution protects against illegal seizures of property
without a warrant. Defendants ask the Court to dismiss the
case with prejudice on the merits because Plaintiffs claim is
not recognized in law, and describe the Plaintiffs claim as:
“he allegedly possessed an allodial land patent and
posted ‘no trespassing' signs, [therefore] all of
his real and personal property became absolutely exempt from
government jurisdiction and any unconsented entry, even by
law enforcement, [and] constituted an unlawful trespass and a
violation of his federal rights.” (Motion (Doc. 12) at
8.) Defendants ask the Court to take judicial notice that
Pima County Sheriffs were executing a Writ of General
Execution issued to satisfy a Michigan divorce judgment,
pursuant to Arizona statutes which authorize seizure of
property to satisfy a judgment. Id. at 8-10. These
were the factual allegations made by the Plaintiff as the
Court understood them when it dismissed the case for lack of
subject matter jurisdiction on July 23, 2019. He has not made
any factual allegations in his recently filed documents to
invoke this Court's jurisdiction under the Takings
Clause, the Fourth Amendment to the Constitution, or any
other constitutional provision or federal law.
Accordingly,
IT IS ORDERED that the Motion to Dismiss
with Prejudice (Doc. 12) is DENIED.
IT
IS FURTHER ORDERED that this action is dismissed for
lack of subject matter jurisdiction, pursuant to the
Court's Order issued on July 23, 2019.
IT
IS FURTHER ORDERED that the Clerk of the Court shall
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