Mall v. Waibel et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Mark Anthony Mall,
Plaintiff,
v.
Adrienne Marie Waibel, et al.,
Defendants.
No. CV-25-04693-PHX-JJT
ORDER
At issue is pro se Plaintiff Mark Anthony Mall’s Second Amended Complaint
(Doc. 17, SAC). For the reasons set forth below, the Court dismisses the Second Amended
Complaint without leave to amend.
I. LEGAL STANDARD
For cases like this one in which a party is permitted to proceed IFP, 28 U.S.C.
§ 1915(e)(2) provides that a district court must screen that party’s complaint for, among other
things, whether the complaint states a claim for which relief may be granted. Lopez v. Smith,
203 F.3d 1122, 1127–29 (9th Cir. 2000). A dismissal under Rule 12(b)(6) for failure to state
a claim can be based on either (1) the lack of a cognizable legal theory or (2) insufficient
facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
699 (9th Cir. 1990). The Court is to construe a pro se plaintiff’s complaint “liberally” and
afford the plaintiff “the benefit of any doubt.” Watison v. Carter, 668 F.3d 1108, 1112 (9th
Cir. 2012) (citation omitted). However, “a liberal interpretation of a civil rights complaint
Case 2:25-cv-04693-JJT Document 20 Filed 01/05/26 Page 1 of 3

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l
Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (citation omitted).
In addition to screening IFP complaints under Section 1915, “[f]ederal courts have an
independent obligation to ensure that they do not exceed the scope of their jurisdiction, and
therefore they must raise and decide jurisdictional questions that the parties either overlook
or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3). The plaintiff bears the burden of establishing
the court’s jurisdiction over his claims. As here, the plaintiff may assert that the defendants
violated the Constitution, a federal law, or treaty of the United States, i.e., the court’s “federal
question” jurisdiction. See 28 U.S.C. § 1331.
II. ANALYSIS
Plaintiff asserts that the Court has federal question subject-matter jurisdiction because
he asserts a claim under 42 U.S.C. § 1983. (SAC ¶ 1.) As recounted in the Court’s previous
Order (Doc. 16), a Section 1983 claim requires that a plaintiff has “been deprived of a right
secured by the Constitution and the laws of the United States” and that the defendant
“deprived them of this right acting under color of any statute of the State.” Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 155 (1978) (citation modified). A private person “acts under color
of state law only when exercising power possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” Polk County v.
Dodson, 454 U.S. 312, 317–18 (1981) (citation modified); see also Rawson v. Recovery
Innovations, Inc., 975 F.3d 742, 751 (9th Cir. 2020).
Plaintiff alleges that Wells Fargo and Tiffany & Bosco foreclosed Plaintiff’s property,
and EZ Homes acquired title of the foreclosed property thereafter. (Id. ¶¶ 21–27.) EZ Homes
then transferred title to Defendants years after the alleged foreclosure took place. (Id. ¶ 26.)
Plaintiff alleges that Defendants’ property interest exists because of the actions of Wells
Fargo, Tiffany & Bosco and EZ Homes. (Id. ¶ 32.) The only “state actors” that played a role
were the Maricopa County Recorder’s Office, which recorded the foreclosure and title
Case 2:25-cv-04693-JJT Document 20 Filed 01/05/26 Page 2 of 3

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
documents, the Superior Court, which initiated an eviction action, and the Sheriff’s Office,
which enforced the foreclosure judgment. (Id. ¶ 29.) According to Plaintiff, Defendants
“relied” upon these state actions “to obtain and maintain possession of the Property.” (Id.
¶ 33.) Plaintiff alleges that Defendants acted “under color of state law through joint
engagement with state actors” (id. ¶ 31) but alleges no facts suggesting that Defendants
participated in any of the foreclosure proceedings, recorded the purportedly void documents,
or otherwise exercised any power possessed by virtue of state law or were clothed with state
law authority. Polk County, 454 U.S. at 317–18. Because Plaintiff fails to sufficiently state
that the Defendants were either a state actor or acted under the color of state law, his Section
1983 claim fails. The only other claims Plaintiff brings are for “quiet title” and “declaratory
judgment” arising under federal law. (SAC ¶¶ 35–39.) The Court already determined that
neither of those claims create an independent cause of action nor confer subject-matter
jurisdiction upon this Court. (Doc. 12.) That same determination applies here.
Plaintiff has twice been given an opportunity to amend his pleadings, once to establish
subject-matter jurisdiction and the other to state a claim upon which relief can be granted.
Plaintiff has not, and cannot, state a federal claim against Defendants for which relief can be
granted in this Court, and therefore cannot establish federal question subject-matter
jurisdiction.1 Accordingly, the Court will dismiss the Second Amended Complaint without
leave to amend. See Lopez, 203 F.3d at 1130.
IT IS ORDERED dismissing Plaintiff’s Second Amended Complaint (Doc. 17)
without leave to amend. The Clerk of Court shall dismiss this matter without further notice.
Dated this 5th day of January, 2026.
1 Even if Plaintiff stated that the Court had diversity jurisdiction, Plaintiff does not assert,
nor does this Court find, the requisite citizenship of the parties or the amount in controversy.
See 28 U.S.C. § 1332(a)(1).
Honorable John J. Tuchi
United States District Judge
Case 2:25-cv-04693-JJT Document 20 Filed 01/05/26 Page 3 of 3