# Esteghalian v. Department of the Navy

> District Court, S.D. California · August 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10084290

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10084290

## How later opinions describe it (automated extraction)

- holding that leave to amend should be granted 19 with “extreme liberality” in order “to facilitate decision on the merits, rather than on the 20 pleadings or technicalities.”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 MANIJEH ESTEGHLALIAN, Case No.: 19-cv-01808-AJB-MSB
Plaintiff,
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ORDER DISMISSING PLAINTIFF
v.
13 ESTEGHLALIAN’S FIRST
DEPARTMENT OF THE NAVY; EDCO AMENDED COMPLAINT WITH
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WASTE AND RECYCLING SERVICES, LEAVE TO AMEND
15 Defendants.
(Doc. No. 7)
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17 Before the Court is Plaintiff Manijeh Esteghlalian’s (“Plaintiff”) First Amended
18 Complaint (“FAC”) for screening. Plaintiff, a non-prisoner proceeding pro se, brings this
19 action against Defendants the United States and EDCO Waste and Recycling Services
20 “(EDCO”). (Doc. No. 7.) For the reasons set forth below, the Court DISMISSES the FAC
21 WITH LEAVE TO AMEND.
22 I. SCREENING REQUIREMENT AND STANDARD
23 All parties instituting any civil action, suit, or proceeding in a district court of the
24 United States, except an application for writ of habeas corpus, must pay a filing fee of
25 $402. See 28 U.S.C. § 1914(a). Because Plaintiff is seeking to proceed in forma pauperis
26 (“IFP”), the Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2).
27 See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam) (holding 28
28 U.S.C. § 1915(e)(2) screening applies to non-prisoners proceeding IFP); see also Lopez v.
1 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C.
2 § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss a complaint, or any
3 portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages from
4 defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The purpose of [screening]
5 is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of
6 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted).
7 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim-
8 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should
9 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,”
10 unless the court determines that “the pleading could not possibly be cured by the allegation
11 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing
12 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t,
13 901 F.2d 696, 701 (9th Cir. 1990)).
14 A. Discussion
15 1. Leave to Add a New Plaintiff
16 First, Plaintiff seeks leave to add a new plaintiff, Al Giovanni, to this action. (Doc.
17 No. 7 at 1.) The Court will grant leave to add Giovanni as a new plaintiff. See United States
18 v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (holding that leave to amend should be granted
19 with “extreme liberality” in order “to facilitate decision on the merits, rather than on the
20 pleadings or technicalities.”). However, this new plaintiff must either pay the $402.00
21 filing fee or file his own application to proceed IFP. “Although only one filing fee needs
22 to be paid per case, if multiple plaintiffs seek to proceed in forma pauperis, each plaintiff
23 must qualify for IFP status.” Anderson v. California, 2010 WL 4316996 at * 1 (S.D. Cal.
24 Oct. 27, 2010). Giovanni has not submitted an IFP application, or paid the $402 filing fee.
25 To the extent this new additional plaintiff seeks IFP status, they must submit an application
26 to proceed IFP.
27 Furthermore, the Court will also need to screen the new plaintiff’s claims under 28
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1 U.S.C. § 1915A if he files for IFP status. As it currently stands, this new plaintiff lacks
2 standing to this case because the FAC does not allege any facts concerning them. See
3 Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (“It is well established . . . that before a
4 federal court can consider the merits of a legal claim, the person seeking to invoke the
5 jurisdiction of the court must establish the requisite standing to sue.”).
6 2. Defendant EDCO Waste and Recycling Services
7 Plaintiff brings this suit against the United States and EDCO. (Doc. No. 7.) She
8 contends the United States, acting through the Navy, is liable for damages under the
9 Federal Tort Claims Act (“FTCA”) because the Navy negligently dumped hazardous waste
10 materials on her business property, including mercury, used tires, and broken televisions.
11 (Id. ¶ 7.)
12 In screening Plaintiff’s original Complaint, the Court had found that the Complaint
13 did not mention any facts relating to EDCO, and only concluded that EDCO caused
14 Plaintiff injury. (Doc. No. 5 at 5.) Based on this deficiency, the Court dismissed the claim
15 against EDCO. (Id. at 6–7.) On this iteration of the Complaint, Plaintiff again failed to
16 allege any facts against EDCO. The FAC only states, in conclusory fashion, that “EDCO
17 Waste and Recycling Services had a duty not to be negligent” and that EDCO “caused
18 serious injuries to plaintiff and her business and her business was used for wedding and
19 living but not anymore after dumping trash in plaintiff [sic].”
20 “The standard for determining whether a plaintiff has failed to state a claim upon
21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
23 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual
24 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
25 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed factual
26 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
27 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
28 “Determining whether a complaint states a plausible claim for relief [is] . . . a context-
1 specific task that requires the reviewing court to draw on its judicial experience and
2 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-
3 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.;
4 see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
5 Again, the Court will remind Plaintiff that a complaint does not suffice if it tenders
6 naked assertion devoid of factual enhancement. See Iqbal, 556 U.S. at 678 (internal
7 quotations omitted). The allegations that EDCO was negligent, and caused her injury, are
8 legal conclusions devoid of any factual support whatsoever. Despite this defect, the Court
9 will afford Plaintiff one final attempt to state a claim against EDCO. The claim will be
10 DISMISSED WITH LEAVE TO AMEND.
11 II. MOTION TO PROCEED IN FORMA PAUPERIS
12 Plaintiff also seeks for the Court to reconsider its prior order denying as moot
13 Plaintiff’s IFP motion. However, in its prior order, the Court had also directed Plaintiff to
14 file a renewed IFP motion with her FAC. (Doc. No. 5 at 7.) Plaintiff did not do so. Because
15 the Court will provide leave for Plaintiff to file a Second Amended Complaint, the Court
16 again directs Plaintiff to file a renewed IFP application, if she so wishes. To be clear, this
17 does not mean that Plaintiff cannot be granted IFP status. She just simply has to file a new
18 IFP motion with her Second Amended Complaint for the Court’s consideration.
19 III. CONCLUSION
20 In light of the foregoing, the Court DISMISSES Plaintiff’s FAC. (Doc. No. 7.) “The
21 court should give leave [to amend] freely when justice so requires.” Fed. R. Civ. P.
22 15(a)(2). In the Ninth Circuit, “Rule 15’s policy of favoring amendments to pleadings
23 should be applied with ‘extreme liberality,’” United States v. Webb, 655 F.2d 977, 979 (9th
24 Cir. 1981), and “[t]his policy is applied even more liberally to pro se litigants.” Eldridge v.
25 Block, 832 F.2d 1132, 1135 (9th Cir. 1987). As such, the Court provides Plaintiff LEAVE
26 TO AMEND to address the deficiencies stated herein. In particular, the Second Amended
27 Complaint should include the factual allegations pertaining to the new plaintiff, Giovanni.
28 Plaintiff Giovanni should also either pay the filing fee or file an application for IFP status.
1 || Plaintiff Esteghlalian may also file a renewed IFP motion with the Second Amended
2 ||Complaint. Lastly, Plaintiffs need to plead facts, and not merely legal conclusions, relating
3 ||to Defendant EDCO to show how this Defendant would be liable to Plaintiffs. Should
4 Plaintiffs wish, they may file a Second Amended Complaint and IFP motions by
5 || September 30, 2021. Failure to do so will result in a dismissal of Plaintiffs’ action.
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7 IT IS SO ORDERED.
8 ||Dated: August 25, 2021

10 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10084290. Public record. Not legal advice.