United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
HONORABLE STEPHEN M. McNAMEE, SENIOR UNITED STATES DISTRICT
Keyon Sharvaris Baker filed a pro se complaint
(“Complaint”) (Doc. 1 as redacted in Doc. 8). In
addition to the Complaint, Plaintiff filed an Application to
Proceed in District Court Without Prepaying Fees or Costs
(Doc. 2 as redacted in Doc. 9), which was granted (Doc.
consented to a magistrate judge (Doc. 12). Before appearances
and consent of defendants, there is not full consent for
undersigned to enter dispositive orders. See Williams v.
King, 875 F.3d 500 (9th Cir. 2017). Thus,
undersigned proceeds by Report and Recommendation.
to this Report and Recommendation, undersigned screened the
Complaint (Doc. 15). In the Screening Order, undersigned gave
Plaintiff an opportunity to file an amended complaint -
correcting the deficiencies, if possible - before making a
report and recommendation to the District Judge for dismissal
Screening Order for the original complaint, undersigned set
forth the areas of deficiencies of the Complaint. Further,
Plaintiff was notified that there are free materials for
pro se litigants, including applicable rules, on the
(see Doc. 15 at 2). Regarding pleading requirements,
Plaintiff is advised that in order to survive dismissal, any
amended complaint must satisfy the pleading requirements of
Rule 8, Federal Rules of Civil Procedure. Specifically, the
first amended complaint shall contain a short and plain
statement of the grounds upon which the Court's
jurisdiction depends, a short and plain statement of each
specific claim asserted against each defendant, a short and
plain statement of what actions of each defendant satisfies
the elements of each claim, and a demand for the relief
sought. These pleading requirements are to be set forth
concisely in separate and discrete numbered paragraphs. The
first amended complaint also must set forth each legal claim
for relief in a separate count (i.e., count one, count two,
etc.), specifying which defendant(s) the claim for relief
regards. The first amended complaint should cure the
deficiencies discussed above. Any amended complaint must
include all the claims Plaintiff wishes to present and all of
the defendants he wishes to sue; any amended complaint may
not incorporate material from the prior complaint by
reference and serves as a full replacement to the complaint
as to all of the defendants.
(Doc. 15 at 5-6).
timely filed an Amended Complaint (Doc. 16). The Amended
Complaint was not substantially different from the original
complaint, and, in fact, the Amended Complaint attached the
original complaint and exhibits. Undersigned recommends that
the Amended Complaint (Doc. 16) be dismissed without
prejudice for failing to comply with the pleading
requirements and for failure to state a claim.
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 dismissed.
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). Thus, 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.'”