Cantero v. Russo

Background

Jose Luis Cantero filed a complaint alleging that the defendants violated his constitutional rights. The opinion states that Cantero was proceeding without a lawyer and had been allowed to proceed without paying filing fees. Maria Juana Quizhpi-Guaman, identified as Cantero’s fiancé, was also listed in the caption as a plaintiff. She did not sign the complaint, submit an application to proceed without paying filing fees, or provide allegations explaining why she was a party.

Earlier Proceedings

In an order dated September 24, 2019, the court dismissed the complaint and gave Cantero 30 days to file an amended complaint. The court also dismissed Quizhpi-Guaman as a plaintiff, without prejudice to any action she might file on her own behalf.

Cantero and Quizhpi-Guaman later sent a joint letter stating that Cantero would no longer proceed in the matter and that Quizhpi-Guaman would continue seeking relief for the constitutional violations described in the original complaint. Quizhpi-Guaman filed an amended complaint without an application to proceed without paying filing fees.

In a December 4, 2019 order, the court told Cantero that the case would be dismissed for failure to state a claim if he did not file an amended complaint within 15 days or otherwise communicate with the court. The court separately told Quizhpi-Guaman that she needed to file her own complaint and fee-waiver application, and that those documents would be opened as a new civil action. She then filed those documents, which were assigned case number 19-CV-11663. The Clerk’s Office also docketed them as a second amended complaint in this case.

Ruling

The court dismissed this case for failure to state a claim on which relief could be granted under 28 U.S.C. § 1915(e)(2)(B)(ii), for the reasons given in the September 24, 2019 order. This is a screening dismissal based on the legal sufficiency of the complaint; the opinion does not repeat the September order’s explanation of why the allegations were insufficient.

The court ordered the Clerk to strike Quizhpi-Guaman’s amended complaint and second amended complaint from the docket of this case. It specified that this was without prejudice to the separate matter pending under case number 19-CV-11663. The Clerk was also directed to docket a copy of the order in that separate case and mail the order to Cantero and Quizhpi-Guaman.

Judge Colleen McMahon certified that any appeal from the order would not be taken in good faith and denied Cantero permission to proceed without paying filing fees for an appeal.