Gomez et al v. Moreno

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Eugenio Gomez, et al.,
Plaintiffs,
v.
Isa Moreno,
Defendant.
No. CV-25-00541-TUC-BGM
ORDER
Before the Court are the in forma pauperis applications of Plaintiffs Elizabeth and
Eugenio Gomez. (Docs. 7, 8.) Because the parties have failed to consent to Magistrate
Judge jurisdiction, Magistrate Judge Bruce G. Macdonald submits this Report and
Recommendation to Senior District Judge Raner C. Collins. See Gen Ord. 21-25. The
Magistrate Judge recommends that the District Judge, after his independent review, deny
the applications and dismiss without prejudice Plaintiffs’ complaint.
LEGAL STANDARD
Congress established that when a complaint is filed in forma pauperis, the court
shall dismiss the case at any time if it determines that the action is (i) 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). To that end,
federal courts perform a preliminary screening to determine whether complaints brought
by in forma pauperis litigants raise cognizable claims. See O’Neal v. Price, 531 F.3d 1146,
1151 (9th Cir. 2008) (“After a prisoner applies for in forma pauperis status and lodges a
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complaint with the district court, the district court screens the complaint and determines
whether it contains cognizable claims. If not, the district court must dismiss the
complaint.”); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (observing that “section
1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners”).
A complaint fails to state a claim when there is no cognizable legal theory or the
factual allegations are insufficient to support a claim for relief. Shroyer v. New Cingular
Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of
a complaint’s factual allegations, the court must accept as true all well-pleaded material
facts and draw all reasonable inferences in the plaintiff’s favor. Wilson v. Hewlett-Packard
Co., 668 F.3d 1136, 1140 (9th Cir. 2012). But to be entitled to a presumption of truth, the
plaintiff “may not simply recite the elements of a cause of action, but must [provide]
sufficient allegations of underlying facts to give fair notice and to enable the opposing party
to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The
underlying factual allegations must “plausibly suggest an entitlement to relief.” Id. “A
claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (citation omitted).
Despite the federal judiciary’s well-known pleading standards, federal courts are
instructed to liberally construe a pro se plaintiff’s pleadings and afford the plaintiff the
benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
“Unless it is absolutely clear that no amendment can cure the defect, … a pro se litigant is
entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to
dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995). But
even a pro se plaintiff must offer more than “labels and conclusions or a formulaic
recitation of the elements.” Iqbal, 556 U.S. at 678 (cleaned up).
DISCUSSION
The Court has carefully reviewed Plaintiffs’ pro se complaint and finds they have
failed to state a plausible claim. Plaintiffs only offer the conclusory assertion that putative
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Pima County Adult Probation Defendant Isa Moreno “[m]ade her own law to destroy a
family based on personal hate, never listen, helped or obey the state law.” (See Doc. 1 at
3, 5.) Additionally, the fact that Plaintiffs checked the “Federal question” jurisdiction box
on their complaint is insufficient to overcome the lack of a federal question on the face of
their pleading. (See Doc. 1 at 4); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)
(ruling that federal question jurisdiction “exists only when a federal question is presented
on the face of the plaintiff’s properly pleaded complaint”). Plaintiffs and Defendant also
appear to be citizens of the same state, which precludes diversity jurisdiction. See 28
U.S.C. § 1332(a)(1) (“The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between … citizens of different States”). Lastly, it is clear from the face
of the complaint that the putative Defendant is most likely immune from suit.1 (See Doc.
1 at 3.) Plaintiffs’ in forma pauperis applications should therefore be denied and their
complaint dismissed without prejudice.
RECOMMENDATION
The Magistrate Judge recommends that the District Judge, after his independent
review, deny Plaintiffs’ in forma pauperis applications, (Docs. 7, 8), and dismiss their
complaint without prejudice. Under the Federal Rules of Civil Procedure, any party may
serve and file written objections within fourteen (14) days of being served with a copy of
this Report and Recommendation, and a party may respond to another party’s objections
within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). No
replies shall be filed unless leave is granted by the District Judge. If objections are filed,
the parties shall use the following case number: 25-541-RCC. Failure to file timely
1 See Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1985) (citations omitted) (“Absolute
immunity fails to attach to judicial officers only when they act clearly and completely
outside the scope of their jurisdiction. Allegations of malice or bad faith in the execution
of the officer’s duties are insufficient to sustain the complaint when the officer possesses
absolute judicial immunity.”).
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objections to any factual or legal determination of the Magistrate Judge may result in
waiver of the right of de novo review.
Dated this 31st day of October, 2025.
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