Lathus v. Navajo, County of

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Joseph Lathus, et al., No. CV-22-08111-PCT-SMB 10 Plaintiffs, ORDER 11 v. 12 County of Navajo, et al., 13 Defendants. [14] 15 Pending before the Court is Plaintiffs Joseph Lathus and Cynthia Pustelak’s First 16 Amended Complaint (the “FAC”). (Doc. 7.) Also pending is Plaintiffs’ (1) Motion for 17 Leave to File Supplemental Exhibits, (Doc. 9); (2) Motion for Permission to Use Post 18 Office Box, (Doc. 11); and (3) Motion to Request Service of Process by U.S. Marshals, 19 (Doc. 12), (collectively, the “Pending Motions”). For the reasons set forth below, the Court 20 will dismiss Plaintiff’s FAC with leave to amend and will dismiss the Pending Motions as 21 moot. 22 I. BACKGROUND 23 On May 1, 2022, the Plaintiffs filed their initial Complaint in the United States 24 District Court for the District of Columbia (the “D.C. District Court”). (Doc. 1.) The 25 Plaintiffs additionally filed a Motion to proceed in forma pauperis. (Doc. 2.) Four days 26 later, the Plaintiffs filed their FAC. (Doc. 7.) On May 27, 2022, the D.C. District Court 27 ordered the case to be transferred to this Court, (Doc. 13), which received the current action 28 on June 28, 2022, (Doc. 17). 1 The FAC asserts numerous claims against a multitude of private, governmental, and 2 judicial defendants. The Defendants in this action are: (1) Navajo County; (2) the City of 3 Show Low; (3) the Show Low Chamber of Commerce; (4) the Show Low Aquatic Center; 4 (5) the Northstar Business Center; (7) Governor Douglas Ducey; and (8) the Doyle Law 5 Firm. (Doc. 7 at 43–44.) However, it is unclear what claims Plaintiffs bring against which 6 Defendants. Plaintiffs allege a “conspiracy against federal civil rights” under: (1) 18 7 U.S.C. § 241 ; (2) 42 U.S.C. §§ 1983 , 1985, 1986; (3) Title II and III of the Americans with 8 Disabilities Act (“ADA”) (42 U.S.C. §§ 1231–12165 and 42 U.S.C. §§ 12181–12189 9 respectively); (5) 42 U.S.C. §§ 12101 et seq.; and (6) section 504 of the Rehabilitation Act 10 of 1973, 19 U.S.C. §§ 701 et seq. (Doc. 7 at 3–4.) Plaintiffs seek a combination of punitive, 11 monetary, and criminal remedies against the various Defendants. (Doc. 7 at 43–44.) 12 II. LEGAL STANDARD 13 In a pro se filing, the Court is required to review a complaint to determine whether 14 the action: 15 (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or [16] (iii) seeks monetary relief against a defendant who is immune from such 17 relief. [18] 28 U.S.C. § 1915 (e)(2)(B). Although § 1915 primarily operates for prisoners, the Ninth 19 Circuit extended this statute for all cases proceeding in forma pauperis, such as the pending 20 noncriminal action here. Lopez v. Smith, 203 F.3d 1122 , 1123 n. 7 (9th Cir. 2000); see also 21 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 22 1915(e)(2)(B) are not limited to prisoners.”). Moreover, the Supreme Court held that “a 23 pro se complaint, however inartfully pleaded, must be held to less stringent standards than 24 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 25 “[P]articularly in civil rights cases” the Court should “construe the pleadings liberally and 26 to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 27 Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026 , 1027 n. 1 (9th Cir. 1985)). 28 “A complaint is frivolous if it is based on a nonexistent legal interest or delusion 1 factual scenario.” Scott v. United States, No. CV-22-00697-PHX-MTL, 2022 WL 2 1480025, at *1(D. Ariz. Apr. 28, 2022) (citing Neitzke v. Williams, 490 U.S. 319 , 327–30 3 (1989)); see also Denton v. Hernandez, 504 U.S. 25 , 32–33 (1992). A district court has 4 “not only the authority to dismiss a claim based on an indisputably meritless legal theory, 5 but also the unusual power to pierce the veil of the complaint's factual allegations and 6 dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 7 328. 8 Additionally, under § 1915, a district court may dismiss a complaint if a plaintiff 9 fails to state a claim upon which relief should be granted. Therefore, a complaint must still 10 contain a short and plain statement of the claims that shows the plaintiff is entitled to relief. 11 Fed. R. Civ. P. 8(a)(2). Rule 8 “demands more than an unadorned, the-defendant12 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And the 13 plaintiff must present more than threadbare recitals of the elements of the cause of action. [14] Id. A complaint must give fair notice to the defendants regarding the grounds upon which 15 the claims rest. Bell Alt. Corp. v. Twombly, 550 U.S. 545 , 555 (2007); Conley v. Gibson, [16] 355 U.S. 41, 47 (1957). “[W]hen the plaintiff pleads factual content that allows the court 17 to draw the reasonable inference that the defendant is liable” the claim is plausible. Iqbal, [18] 556 U.S. at 678 . “Although a plaintiff’s specific factual allegations may be consistent with 19 a constitutional claim, a court must assess whether there are other ‘more likely 20 explanations’ for a defendant’s conduct.” Beede v. Wexford Health Servs., No. CV 2121 02087-PHX-JAT (JZB), 2022 WL 2702529 , at *1 (D. Ariz. Jul. 12, 2022) (quoting Iqbal, [22] 556 U.S. at 681 ). 23 III. DISCUSSION 24 Here, instead of adhering to a short and plain statement under Rule 8(a)(2), the 25 Plaintiffs guide the Court down a complex path of enmeshed allegations and alleged 26 conspiracies. The FAC—read in its entirety—totally obscures the actual source of 27 controversy—a purported ADA violation at the Show Low Aquatic Center.1 The FAC [28] 1 To bring a claim for discrimination or retaliation under the ADA, Plaintiffs must first file 1 alleges a conspiracy ring involving Governor Ducey; the Navajo County government; the 2 Navajo County Superior Court; the City of Show Low government and the affiliated Show 3 Low Aquatic Center; and the private institutions of the Doyle Law Firm, the Northstar 4 Business Center, and the Show Low Chamber of Commerce. According to the Plaintiffs, 5 the aforementioned conspired to deprive the Plaintiffs of their rights on the basis of their 6 disability.2 7 The FAC fails to state a claim for which relief may be granted and also asserts 8 frivolous claims against uninvolved parties—even seeking that certain parties be jailed for 9 their involvement in the alleged conspiracy. Interestingly, it appears that Plaintiffs’ legal 10 basis for their argument was copied from amicus curiae brief filed by the United States in 11 the case Zamora-Quezada v. HealthTexas Med. Grp. of San Antonio, 34 F. Supp. 2d 433 12 (W.D. Tex. 1998). But Plaintiffs do not cite this brief. It does appear, however, that 13 Plaintiffs went through an editorial process to remove superfluous arguments made in the 14 original brief. 15 Plaintiffs should be aware that “[a] complaint is not a puzzle . . . and [the Court] is 16 loathe to tax defendants, against whom [the plaintiffs] have levied very serious charges, 17 with the burden of solving puzzles in addition to the burden of formulating an answer to 18 their complaint.” In re GlenFred, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) 19 (superseded by statute on other grounds). The Court cannot—and will not—untangle the 20 web of allegations spun by the Plaintiffs. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th 21 Cir. 1994) (“[J]udges are not like pigs, hunting for truffles buried in briefs.” (quoting 22 United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))). There is no comprehensible [23] 24 a charge with the EEOC—or the Arizona Civil Rights Division—within 300 days after the alleged discriminatory or retaliatory events. See 42 U.S.C. § 12117 (a) (incorporating by [25] reference Title VII’s 300-day limitation period, as outlined in 42 U.S.C. § 2000e-5(e)(1)). 26 Nowhere in Plaintiffs’ FAC do they allege or present evidence that they have complied with the prerequisite administrative requirements before filing this claim. [27] 2 The Court also notes that, other than alleging to be disabled, Plaintiffs have provided no 28 evidence of disability in their FAC. Should Plaintiffs elect to amend their Complaint, they should include evidence of their respective disabilities. 1 cause of action, nor an explanation of what parties committed which allegedly harmful 2 acts, nor a clear request for relief under such allegations. Therefore, the Court will dismiss 3 Plaintiff’s complaint with leave to amend. 4 However, because “it is not ‘absolutely clear’ that [Plaintiffs] could not cure [the 5 FAC’s] deficiencies by amendment,” the Court will give Plaintiffs the opportunity to do 6 so. See Jackson v. Barnes, 749 F.3d 755, 767 (9th Cir. 2014) (citations omitted); see also 7 Lopez, 203 F.3d at 1131 (holding that a pro se litigant must be given leave to amend his 8 complaint “if it appears at all possible that the plaintiff can correct the defect” in the 9 complaint (internal quotation marks and citations omitted)); Fed. R. Civ. P. 15(a)(2) (“The 10 court should freely give leave [to amend] when justice so requires.”). Plaintiff’s complaint 11 must be amended to address the deficiencies identified above. 12 Plaintiffs’ second amended complaint should (1) clearly state what claims Plaintiffs 13 are bringing; (2) clearly state which defendants their claims are brought against; (3) provide 14 factual support for the allegations made; (4) provide evidence that Plaintiffs have met the 15 administrative exhaustion requirement for bringing an ADA claim; and (5) include 16 attachments and exhibits at the end of the complaints, instead of interspersed throughout. 17 Plaintiffs’ would benefit by following the form detailed in Rule 7.1 of the Local Rules of 18 Civil Procedure (“LRCiv”).3 Examples of different types of complaints demonstrating the 19 proper form can be found in the appendix of forms that is contained with the Federal Rules 20 of Civil Procedure (forms 11–21). 21 Within thirty (30) days from the date of entry of this Order, Plaintiffs may submit 22 an amended complaint. Plaintiffs must clearly designate on the face of the document that 23 it is the “Second Amended Complaint.” If Plaintiffs decide to file an amended complaint, 24 they are reminded that it supersedes the original complaint, see Lacey v. Maricopa Cty., [25] 26 3 The Local Rules may be accessed through the District of Arizona website at www.azd.uscourts.gov/. Under the “For those Proceeding Without an Attorney” tab, the [27] website also provides the “Handbook for Self-Represented Litigants,” the Electronic Pro 28 Se (E-Pro Se) Program, and the various forms for self-represented litigants. Plaintiffs are encouraged to explore all the resources provided by the Court for pro se litigants. 1|| 693 F.3d 896, 925-28 (9th Cir. 2012), and it must be complete in itself and “must not 2|| incorporate by reference any part of the preceding pleading, including exhibits,” LRCiv 15.1. 4 IV. Warning 5 Plaintiffs are advised that if they elect to file a second amended complaint but fail 6 || tocomply with the Court’s instructions explained in this Order, the action will be dismissed pursuant to section 28 U.S.C. § 1915 (e) and Rule 41(b) of the Federal Rules of Civil 8 || Procedure. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal 9|| with prejudice of amended complaint that did not comply with Rule 8(a)). 10 V. CONCLUSION 11 Accordingly, 12 IT IS ORDERED dismissing Plaintiff's FAC, (Doc. 7), with leave to file a Second 13 || Amended Complaint within thirty (30) days of the date this Order. 14 IT IS FURTHER ORDERED denying Plaintiff's Pending Motions, (Docs. 9; 11; 12), as moot. 16 IT IS FURTHER ORDERED that if Plaintiffs do not file a Second Amended 17 || Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court shall 18 || dismiss this action, enter judgment, and terminate the case. 19 IT IS FURTHER ORDERED that if Plaintiffs elect to file a Second Amended 20 || Complaint, it may not be served until and unless the Court issues an Order screening the 21 || amended complaint pursuant to 28 U.S.C. § 1915 (e)(2). 22 Dated this 27th day of July, 2022. [23] 24 — . RP 25 SO 26 Gnvted States District ude. [28] -6-