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Fariss-Borello v. City of Scottsdale

United States District Court, D. Arizona

September 11, 2019

Michael Anthony Fariss-Borello, Plaintiff,
v.
City of Scottsdale, Defendant.

          ORDER

          Honorable Susan M. Brnovich United States District Judge

         Defendant 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.

         I. Legal Standards

         The Court must review the complaint to determine whether the action:

(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(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.

         While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” 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.

         II. Statutory Screening

         The 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).

         The 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.

         III. ...


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