United States District Court, D. Arizona
Honorable Susan M. Brnovich United States District Judge
City of Scottsdale filed a Motion to Dismiss for Failure to
State a Claim. (Doc. 10). Prior to the motion, however, the
Complaint was never screened, as required by 28 U.S.C. §
1915(e)(2)(B). Previously, Plaintiff Michael Fariss-Borello
(“Plaintiff”) filed an Application for Leave to
Proceed In Forma Pauperis, which the Court granted. (Docs. 2,
8). The Court will conduct that screening now, dismiss the
Complaint (Doc. 1, “Complaint”) with leave to
amend, and deny Defendant's Motion as moot.
Court must review the complaint to determine whether the
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2)(B). Additionally, Rule 8(a) of
the Federal Rules of Civil Procedure requires that:
A pleading which sets forth a claim for relief, whether an
original claim, counter-claim, cross-claim, or third-party
claim, shall contain (1) a short and plain statement of the
grounds upon which the court's jurisdiction depends,
unless the court already has jurisdiction and the claim needs
no new grounds of jurisdiction to support it, (2) a short and
plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for judgment for the
relief the pleader seeks. Relief in the alternative or of
several different types may be demanded.
Rule 8 does not demand detailed factual allegations,
“it demands more than an unadorned, the
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. A complaint “must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id.
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). A complaint that provides
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. Nor will a
complaint suffice if it presents nothing more than
“naked assertions” without “further factual
enhancement.” Id. at 557.
basis for the complaint is difficult to decipher, but it
appears Plaintiff is attempting to file a claim under 18
U.S.C. § 371-Conspiracy to commit offense or to defraud
the United States. (Complaint at 1). Plaintiff cites that
statute in the “Jurisdiction” portion of the
complaint. (Complaint at 1). Among other things, the
Complaint mentions the Scottsdale Police Department asking
him about a neighbor who was applying to be an FBI agent,
which the Office of Scottsdale Mayor Jim Lane told him was a
federal program. He demands $50 million. (Complaint at 4).
statute Plaintiff cites is a criminal statute. 18 U.S.C.
§ 371 (“If two or more persons conspire either to
commit any offense against the United States, or to defraud
the United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act to
effect the object of the conspiracy, each shall be fined
under this title or imprisoned not more than five years, or
both.”). Criminal statutes, however, “do not
convey a private right of action.” Rockefeller v.
U.S. Court of Appeals Office, for Tenth Circuit Judges,
248 F.Supp.2d 17, 23 (D.D.C. 2003); see Fiorno v.
Turner, 476 F.Supp. 962, 963 (D. Mass. 1979)
([P]laintiff has failed to cite, and the court has been
unable to locate, any authority which would support implying
a civil cause of action for violations of [18 U.S.C. §
371].”). Therefore, Plaintiff has failed to state a
claim on which relief can be granted.