Baker v. United States Customs and Border Protection Service

          REPORT AND RECOMMENDATION

          Honorable Deborah M. Fine United States Magistrate Judge

         TO THE HONORABLE STEPHEN M. McNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:

         Plaintiff 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. 15).^[1]

         Plaintiff 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 (9^th Cir. 2017). Thus, undersigned proceeds by Report and Recommendation.

         Previous 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 (Id.).

         In the 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 Court's website: http://www.azd.uscourts.gov/proceeding-without-attorney (see Doc. 15 at 2). Regarding pleading requirements, undersigned wrote:

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).

         Plaintiff 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.

         I. Screening/Review Pursuant to § 1915

         Where a 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 (9^th Cir. 1996). See also Lopez v. Smith, 203 F.3d 1122, 1126 fn. 7 (9^th 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.

         In 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 (9^th 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. at 570).

         Where a 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 (9^th 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 (9^th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, fn. 1 (9^th Cir. 1997).

         To 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.'” ...