Stoner v. ConstruPlan LLC

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kelli Nicole Stoner,
Plaintiff,
v.
ConstruPlan LLC,
Defendant.
No. CV-25-03024-PHX-SHD
ORDER
Pending is Plaintiff Kelli Stoner’s First Amended Complaint (“FAC”), (Doc. 8).
Stoner’s original Complaint was dismissed on August 21, 2025, under 28 U.S.C. § 1915(e)
for failure to state a claim. (See Doc. 5.) Because Stoner’s FAC does not cure the
deficiencies identified in the August 2025 Order, it will be dismissed with leave to amend.
I. SCREENING THE COMPLAINT
Because Stoner is proceeding IFP in this case, her Complaint must be screened.
A. Legal Standard
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 to all in forma
pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir. 2000). “It is also clear that section 1915(e) not only
permits but requires a district court to dismiss an in forma pauperis complaint
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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, at *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, 2023 WL 2468967, at *2 (S.D. Cal. 2023).
B. Stoner’s Complaint
Under Rule 8(a)(2), “a pleading must contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677–
78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). While this does not require “detailed factual
allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. at 678 (quotation marks omitted). To meet this standard, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. (quotation marks omitted). Thus, a complaint must include
“factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.; see also id. (“Nor
does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” (citation modified)). Pro se filings must be construed “liberally when
evaluating them under Iqbal.” Jackson v. Barnes, 749 F.3d 755, 763–64 (9th Cir. 2014).
1. Standing
As with her original Complaint, Stoner fails to establish in the FAC that she has
standing to pursue her claims. Article III of the United States Constitution requires that a
plaintiff possess standing to pursue a claim in federal court. Lujan v. Defs. of Wildlife, 504
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U.S. 555, 560–61 (1992). To establish standing, a plaintiff “must have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016) (citing Lujan, 504 U.S. at 560–61). An injury in fact is “‘an invasion
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent,
not conjectural or hypothetical.’” Id. at 339 (quoting Lujan, 504 U.S. at 560). An injury
is particularized if it affects the plaintiff “in a personal and individual way.” Id. (quoting
Lujan, 504 U.S. at 560 n.1.)
Stoner’s claims are premised on the allegation that Defendant ConstruPlan LLC
(“ConstruPlan”) demolished several buildings and a Native American Burial Grounds on
an unidentified property.1 (See generally, Doc. 8.) But it remains unclear what interest, if
any, Stoner has in this property. Stoner appears to allege that she is the rightful owner of
the property because it was abandoned and she was “first possessor.” (Doc. 8 at 5.) But
she does not allege sufficient facts to show that her residence on the property ripened into
a legal property interest by adverse possession or other means. See Ariz. Rev. Stat. § 12-
521 (defining adverse and peaceable possession). To the contrary, her allegations on this
point are confusing and internally inconsistent. (See, e.g., Doc. 8 at 8 (alleging that public
records show the property was vacant in 2023 but that Stoner had “record and proof that
the previous owner was in fact still in possession of the property in the year 2023”); id. at
8–9 (alleging that Stoner has “physical possession of all original paper and documents
conveying the deed, trust and title” and that—apparently referring to ConstruPlan’s
ownership of the land—“in the review of the limited available documents . . . there are
discrepancies upon the date of sale, date of the transaction, and now the latest date of
property being sold within only days prior to the demolition occurring”); see also Doc. 7
1 Stoner’s prior complaint identified several addresses, but requested relief for “621
E. Medowlark Ln.” (Doc. 7 at 2.) Her FAC does not include any addresses. (See Doc. 8.)
Stoner was warned in the August 2025 Order that “an amended Complaint supersedes the
original Complaint.” (Doc. 7 at 4.) In any event, the specific property at issue remains
unidentifiable with any degree of certainty, which underscores the inadequacy of the
Stoner’s allegations.
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at 3 (dismissing original Complaint in part because it was “too confusing to state a claim,”
and collecting similar cases).)
Because Stoner has not plausibly alleged a legally cognizable property interest in
the subject property, she has not established standing, and her claims predicated on the
deprivation of the property will be dismissed.2
2. State Action
The FAC includes multiple constitutional claims. Specifically, Stoner asserts
claims for violation of the First, Fourth, Fifth, and Ninth Amendments, as well as the Equal
Protection and Due Process Clauses of the Fourteenth Amendment. (Doc. 8 at 13–24.) As
an initial matter, the Ninth Amendment “does not independently create judicially
enforceable constitutional rights.” Camarena-Revis v. Stoneberg, 2019 WL 2437458, at
*2 (D. Or. 2019). Furthermore, “[t]he Constitution’s protections of individual liberty and
equal protection apply in general only to action by the government.” Edmonson v. Leesville
Concrete Co., Inc., 500 U.S. 614, 619 (1991). Stoner names only ConstruPlan, a private
limited liability corporation, as a defendant. And while she mentions the police, Maricopa
County, and the town of Paradise Valley in her FAC, she does not allege sufficient facts to
support the reasonable inference that ConstruPlan’s actions are attributable to any of these
state entities. (See, e.g., Doc. 8 at 8.) Her constitutional claims therefore fail and will be
dismissed. See e.g., Lucero v. Marie & Deedon, 2026 WL 593230, at *1 (E.D. Cal. 2026)
(dismissing constitutional claims against private parties because “[t]he First Amendment
forbids the government from limiting speech, it does not constrain the conduct of private
parties. The Due Process Clause requires the government to provide fair proceedings, it
does not impose any duties on private parties. And the Equal Protection Clause prohibits
governmental discrimination, not private discrimination” (citations omitted)).
Stoner also asserts claims under 42 U.S.C. §§ 1983 and 1985, but these claims suffer
from the same defect as her constitutional claims. To state a claim under 42 U.S.C. § 1983,
2 To the extent Stoner’s claims are based on harms other than the deprivation of the
subject property her claims also fail for failure to show state action, as explained below.
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a plaintiff must allege, among other things, that the defendant acted under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988). “The traditional definition of acting under
color of state law requires that the defendant in a § 1983 action have exercised power
‘possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.’” Id. at 499 (quoting U.S. v. Classic, 313 U.S. 299, 326
(1941)). Nothing in the FAC indicates that ConstruPlan was acting under state law when
it began construction on the property. And while private parties may be subject to suit
under 42 U.S.C. § 1985, the plaintiff must allege sufficient facts to support the reasonable
inference that the private party was engaged in a conspiracy with a state actor. Pasadena
Republican Club v. Western Justice Center, 985 F.3d 1161, 1171 (9th Cir. 2021) (failure
to allege conspiracy with a state actor is fatal to a § 1985 claim); see also Tamrat v.
Schreeder, 2020 WL 2994973, at *4 n.3 (N.D. Cal. 2020) (holding that “[a] mere allegation
of conspiracy without factual specificity is insufficient” to state a § 1985 claim (quotation
marks omitted)). Stoner does not allege sufficient facts to support such an inference.
Consequently, her §§ 1983 and 1985 claims will be dismissed.
The FAC also contains the 42 U.S.C. § 7604 Clean Air Act citizen-suit theory raised
in the original Complaint. Like the original Complaint, the FAC does not include factual
allegations to support the conclusion that ConstruPlan is a regulated entity under the Clean
Air Act, or that ConstruPlan violated any specific emission standard, limitation, or permit
requirement under the Clean Air Act. (See Doc. 7 at 3.) This claim, too, will be dismissed.
II. LEAVE TO AMEND
Unless a court determines that a pleading cannot be cured by the allegation of other
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). A
finding that any amendment would be futile justifies dismissal without leave to amend.
Bonin v. Calderon, 59 F.3d 815, 845 (1995).
Here, it cannot be concluded that amendment would be futile, in part because it is
unclear whether Stoner has a legally cognizable interest in the property, and further,
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whether any injury she suffered can be attributed to a state actor. Stoner will be granted
the opportunity to amend, but it is noted that this will be her third chance to amend her
complaint, and failure to allege facts supporting the court’s jurisdiction will result in
dismissal of this action, possibly without further leave to amend.
Stoner is reminded that an amended Complaint supersedes the original Complaint.
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard
Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). Thus, after amendment, the original
complaint is treated as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action raised
in the original complaint is waived if it is not alleged in an amended complaint. See Lacey
v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). And any Defendant not
renamed in the amended complaint will remain dismissed from this case. See id.
Accordingly,
IT IS ORDERED that the FAC (Doc. 8) is dismissed. Stoner has 30 days from the
date of this Order to file an amended complaint. Consistent with LRCiv 15.1, Stoner shall
file, concurrently with any amended complaint, a notice of filing the amended pleading
that attaches a copy of the amended pleading indicating in what ways it differs from the
Complaint.3
IT IS FURTHER ORDERED that if Stoner files an amended complaint, the Clerk
of Court shall not issue a summons until the Court screens the amended complaint and
orders service consistent with 28 U.S.C. § 1915(d).
///
///
///
///
///
3 The Local Rules and a Handbook for Self-Represented Litigants are available on
this District Court’s website. See U.S. District Court, District of Arizona, Information for
those Proceeding Without an Attorney (Pro Se), https://www.azd.uscourts.gov/proceeding-
without-attorney (last visited April 3, 2026).
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IT IS FURTHER ORDERED that if Stoner fails to file an amended complaint
within 30 days, the Clerk of Court shall enter judgment dismissing this case with prejudice.
Dated this 7th day of April, 2026.
Case 2:25-cv-03024-SHD Document 9 Filed 04/07/26 Page 7 of 7