Goff v. ALK Asphalt LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ryan Christopher Goff,
Plaintiff,
v.
ALK Asphalt LLC, et al.,
Defendants.
No. CV-25-04537-PHX-JAT
ORDER
Plaintiff filed a complaint and a motion to proceed in forma pauperis. (Docs. 1-2).
Plaintiff thereafter filed an amended complaint. (Doc. 6).
I. Legal Standards
A. Ability to Pay
“There is no formula set forth by statute, regulation, or case law to determine when
someone is poor enough to earn IFP status.” Escobedo v. Applebees, 787 F.3d 1226, 1235
(9th Cir. 2015). “An affidavit in support of an IFP application is sufficient where it alleges
that the affiant cannot pay the court costs and still afford the necessities of life.” Id. at 1234
(citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)).
B. Screening – 28 U.S.C. § 1915(e)(2)
Congress provided with respect to in forma pauperis cases that a
district court “shall dismiss the case at any time if the court determines” that
the “allegation of poverty is untrue” or that the “action or appeal” is
“frivolous or malicious,” “fails to state a claim on which relief may be
granted,” or “seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2). While much of section 1915 outlines
how prisoners can file proceedings in forma pauperis, section 1915(e) applies
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to all in forma pauperis proceedings, not just those filed by prisoners. Lopez
v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“section 1915(e) applies to all
in forma pauperis complaints”). “It is also clear that section 1915(e) not only
permits but requires a district court to dismiss an in forma pauperis complaint
that fails to state a claim.” Id. Therefore, this court must dismiss an in forma
pauperis complaint if it fails to state a claim or if it is frivolous or malicious.
Kennedy v. Andrews, 2005 WL 3358205, *2 (D. Ariz. 2005).
“The standard for determining whether a plaintiff has failed to state a claim
upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the
Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that
screening pursuant to § 1915A “incorporates the familiar standard applied in
the context of failure to state a claim under Federal Rule of Civil Procedure
12(b)(6)”).
Hairston v. Juarez, No. 22-CV-01801-BAS-WVG, 2023 WL 2468967, at *2 (S.D. Cal.
Mar. 10, 2023).
Because Plaintiff has moved to proceed in forma pauperis, the Court will screen the
amended complaint pursuant to 28 U.S.C. § 1915(e)(2) before it is allowed to be served.
II. Discussion
A. Ability to Pay
In his application to proceed in forma pauperis (Doc. 2), Plaintiff claims he has no
income or assets. He also states that he is a disabled veteran, but that he receives no
financial assistance.
Taking the application as true, Plaintiff does not have the ability to pay and will be
granted in forma pauperis status. However, the Court questions how Plaintiff is surviving
if he receives no support from any sources. See Kennedy, 2005 WL 3358205, *2
(“Congress provided with respect to in forma pauperis cases that a district court ‘shall
dismiss the case at any time if the court determines’ that the ‘allegation of poverty is
untrue’) (citing 28 U.S.C. § 1915(e)(2)). Plaintiff is cautioned that he must amend the
application if any portion of it is untrue or inaccurate.
B. Screening
The amended complaint is 34 pages long, names 9 separate Defendants (some of
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whom are groups) and includes 15 separate Counts. (Doc. 6). The first 16 pages of the
amended complaint is a narrative of mostly legal conclusions.
While Plaintiff breaks apart his 15 causes of action, he does not specify which cause
of action is against which Defendant and instead brings most of the Counts against all
Defendants. Grouping Defendants together typically will not survive screening.
Specifically, for a complaint to be plausible, it cannot be a “shotgun pleading…. One
common type of shotgun pleading comes in cases with multiple defendants where the
plaintiff uses the omnibus term ‘Defendants’ throughout a complaint by grouping
defendants together without identifying what the particular defendants specifically did
wrong.” Sollberger v. Wachovia Sec., LLC, No. SACV 09-0766AGANX, 2010 WL
2674456, at *4 (C.D. Cal. June 30, 2010).
Here, for example, Plaintiff alleges “retaliation” in Count 2 against “all
Defendants”. (Doc. 16 at 18). Plaintiff does not specify what each of the 9 Defendants
allegedly did to retaliate against him. Further Plaintiff does not allege what his relationship
is with each Defendant such that the Court could determine what legal duty, if any, a
particular Defendant has to not retaliate against Plaintiff. Instead, Plaintiff alleges that he
engaged in protected activity under the Americans with Disabilities Act when he requested
a reasonable accommodation, and that he was retaliated against for doing so. (Doc. 16 at
18).
The 9 Defendants in this case include: ALK Asphalt LLC, Adam Kautman, Donald
W. Hudspeth, the City of Phoenix, the State Bar of Arizona, James D. Lee, Laura Pastor,
“District 4 Staff”, “John Does 1-50” and Jennifer Ryan-Touhill (a Maricopa County
Superior Court Judge). The Court cannot determine what interaction (if any) Plaintiff had
with ALK Asphalt LLC, Adam Kautman, or Donald W Hudspeth. Plaintiff claims the City
of Phoenix, District 4 Staff, and Laura Pastor (a City of Phoenix Councilperson) engaged
in selective enforcement of codes and regulations against Plaintiff (no particular actions by
any Defendant are alleged). Plaintiff claims the State Bar of Arizona and attorney James
Lee engaged in an unauthorized practice of law referral against Plaintiff. Plaintiff claims
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Judge Ryan-Touhill did not accommodate his disability and forwarded an unauthorized
practice of law referral against Plaintiff.
Plaintiff fails to state a claim against any Defendant. Plaintiff fails to allege the
nature of his disability; he instead concludes that he is covered by the Americans with
Disabilities Act. Plaintiff fails to allege his requested accommodation (or how it was
presented to each Defendant). Plaintiff fails to allege why each Defendant had a duty to
accommodate him. Finally, Plaintiff fails to allege how any of the actions by each
Defendant were retaliatory; and with respect to some Defendants, Plaintiff fails to allege
any actions at all.
Additionally, Rule 20(a)(2) permits the joinder of multiple Defendants when: “(A)
any right to relief is asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will arise in the
action.” Fed. R. Civ. P. 20(a)(2). Here, Plaintiff appears to be suing four groups of
Defendants for completely unrelated reasons. This is a further reason why the amended
complaint cannot be allowed to proceed against all 9 Defendants.
While the Court has, for illustrative purposes, discussed Count 2 of the amended
complaint in detail, each Count of the amended complaint suffers from the same
deficiencies. Accordingly, the amended complaint will be dismissed in its entirety.
III. Leave to Amend
If the Court determines a pleading could be cured by Plaintiff alleging additional
facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal
of the action. See Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000) (en banc);
Jackson v. Barnes, 749 F.3d 755, 767 (9th Cir. 2014) (stating the court will give a plaintiff
the opportunity to cure the complaint’s deficiencies by amendment unless it is clear the
plaintiff could not do so). However, leave to amend is not warranted unless the deficiencies
“can be cured with additional allegations that are ‘consistent with the challenged pleading’
and that do not contradict the allegations in the original complaint,” United States v.
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Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (quoting Reddy v. Litton Indus.,
Inc., 912 F.2d 291, 296–97 (9th Cir. 1990)).
Plaintiff has already amended his complaint once. “Leave to amend need not be
given if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package
Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to
amend is particularly broad where Plaintiff has previously been permitted to amend his
complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir.
1996). Repeated failure to cure deficiencies is one of the factors to be considered in
deciding whether justice requires granting leave to amend. Moore, 885 F.2d at 538.
Notwithstanding that Plaintiff has already amended his complaint once, the Court
cannot say with certainty that Plaintiff cannot cure some Counts against some Defendants
with the inclusion of additional facts, and the dismissal of unrelated facts. Therefore, the
Court will grant Plaintiff leave to amend.
Plaintiff is cautioned that an amended complaint supersedes the original complaint.
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios, Inc. v. Richard
Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat
all prior complaints as nonexistent. Ferdik, 963 F.2d at 1262. As such, the first amended
complaint must be retyped or rewritten in its entirety and may not incorporate any part of
any prior complaint by reference.
Importantly, the amended complaint should explain Plaintiff’s case in a short and
plain manner, with each cause of action accompanied by facts which satisfy the elements
of the claims brought. See Fed. R. Civ. P. 8. In the event Plaintiff fails to timely file an
amended complaint curing all deficiencies described above, Plaintiff is advised this case
will be dismissed pursuant to 28 U.S.C. § 1915(e) or Rule 41(b) of the Federal Rules of
Civil Procedure. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming
dismissal with prejudice of amended complaint that did not comply with Rule 8).
IV. Conclusion
Based on the foregoing,
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IT IS ORDERED that Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is
granted.
IT IS FURTHER ORDERED that the amended complaint is dismissed. Plaintiff
has 30 days from the date of this Order to file a second amended complaint. If Plaintiff
fails to file a second amended complaint within this deadline, the Clerk of the Court shall
enter judgment dismissing this case. If Plaintiff files a second amended complaint, it shall
not be served until it is screened.
Dated this 15th day of January, 2026.
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