Howard v. Mesa Police Department, City of et al, No. 2:2009cv02296 - Document 4 (D. Ariz. 2009)
Court Description: ORDER granting 3 Plaintiff's Motion for Leave to Proceed in forma pauperis. The Compliant is dismissed with 30 days leave to amend. Clerk must enter dismissal with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g) if Plaintiff fails to comply. Signed by Judge Mary H Murguia on 12/16/09. (Attachments: #(1) PCR Form). (LSP)
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Howard v. Mesa Police Department, City of et al 1 Doc. 4 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steven Dale Howard, Plaintiff, 10 11 vs. 12 Mesa Police Department, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-2296-PHX-MHM (ECV) ORDER 15 JDDL-K 16 Plaintiff Steven Dale Howard, who is confined in the Maricopa County Fourth 17 Avenue Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an 18 Application to Proceed In Forma Pauperis. The Court will dismiss the Complaint with leave 19 to amend. 20 I. Application to Proceed In Forma Pauperis and Filing Fee 21 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 22 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 23 The Court will assess an initial partial filing fee of $1.20. The remainder of the fee will be 24 collected monthly in payments of 20% of the previous month’s income each time the amount 25 in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate 26 Order requiring the appropriate government agency to collect and forward the fees according 27 to the statutory formula. 28 Dockets.Justia.com 1 JDDL-K II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief against 3 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 5 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 6 be granted, or that seek monetary relief from a defendant who is immune from such relief. 7 28 U.S.C. § 1915A(b)(1), (2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 10 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 12 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 23 If the Court determines that a pleading could be cured by the allegation of other facts, 24 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 25 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 26 should not, however, advise the litigant how to cure the defects. This type of advice “would 27 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 28 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was -2- 1 required to inform a litigant of deficiencies). Plaintiff’s Complaint will be dismissed for 2 failure to state a claim, without leave to amend because the defects cannot be corrected. 3 III. 4 5 Plaintiff sues the Mesa Police Department and Special Felon Unit. Plaintiff raises two grounds for relief in the Complaint: 6 (1) Plaintiff’s Fourth Amendment rights were violated when Mesa Police Officers 7 wrongfully arrested him for unlawful failure to return a motor vehicle; and 8 (2) Plaintiff’s Fourth Amendment rights were violated when the Special Unit went 9 to Plaintiff’s apartment complex and lied to the apartment management in order 10 to arrest Plaintiff for unlawful failure to return a motor vehicle. 11 JDDL-K Complaint Plaintiff alleges that he was jailed for nine days and suffered mental anguish. Plaintiff 12 seeks money damages. 13 IV. Failure to State a Claim 14 A. Defendants 15 A municipality may not be sued solely because an injury was inflicted by one of its 16 employees or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 17 Rather, the municipality is liable only when the execution of its policy or custom inflicts the 18 constitutional injury. Id.; Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005). 19 Therefore, a § 1983 claim against a municipal defendant “cannot succeed as a matter of law” 20 unless the plaintiff: (1) contends that the municipal defendant maintains a policy or custom 21 pertinent to the plaintiff’s alleged injury; and (2) explains how such policy or custom caused 22 the plaintiff’s injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming 23 dismissal of a municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)). 24 Plaintiff does not allege that his injuries were the result of a policy or custom of the 25 City of Mesa or the Mesa Police Department. Accordingly, the Plaintiff has failed to state 26 a claim against Defendant Mesa Police Department. 27 Moreover, “Special Felon Unit” is not a properly named Defendant. The “Special 28 Felon Unit” is simply a division of the Mesa Police Department and not a person amenable -3- 1 to suit under § 1983. To state a valid claim under § 1983, plaintiffs must allege that they 2 suffered a specific injury as a result of specific conduct of a defendant and show an 3 affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 4 U.S. 362, 371-72, 377 (1976). Plaintiff must identify specifically named individuals 5 responsible for the violation of his constitutional rights; Plaintiff’s conclusory allegations that 6 a group of Defendants, such as the Special Felon Unit, violated his rights are unacceptable 7 and fail to state a claim. The Court will therefore dismiss the Complaint with leave to 8 amend. 9 B. Heck v. Humphrey and Wallace v. Kato 10 A prisoner’s claim for damages under § 1983 must be dismissed if “a judgment in 11 favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” 12 unless the prisoner demonstrates that the conviction or sentence has previously been 13 reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 14 (1994). However, 15 16 17 18 [i]f a plaintiff files a false arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended. If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit. 19 Wallace v. Kato, 549 U.S. 384, 393-94 (2007) (citations omitted). 20 Plaintiff provides no information about the criminal proceedings resulting from the 21 arrest at issue in this case and the Court is therefore unable to determine whether Plaintiff’s 22 claims are barred by Heck. Accordingly, if Plaintiff chooses to file an amended complaint 23 against proper defendants, Plaintiff must include information about the outcome of his arrest, 24 specifically whether he was convicted of the charges, the charges were dismissed, or whether 25 the criminal proceedings on the charges are still pending. 26 If Plaintiff was convicted of the charges at issue, his claims are barred by Heck and 27 the Court will dismiss this action. If criminal proceedings against Plaintiff on the charges 28 JDDL-K -4- JDDL-K 1 at issue are still pending, or if the charges were ultimately dismissed, the Court will evaluate 2 the amended complaint to determine whether this case should proceed. 3 V. Leave to Amend 4 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 5 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 6 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 7 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 8 to use the court-approved form, the Court may strike the amended complaint and dismiss this 9 action without further notice to Plaintiff. 10 In any amended complaint, Plaintiff must write short, plain statements telling the 11 Court: (1) the constitutional right Plaintiff believes was violated; (2) name of the Defendant 12 who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action 13 or inaction of that Defendant is connected to the violation of Plaintiff’s constitutional right; 14 and (5) what specific injury Plaintiff suffered because of that Defendant’s conduct. Rizzo, 15 423 U.S. at 371-72, 377. 16 Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff 17 fails to affirmatively link the conduct of each named Defendant with the specific injury 18 suffered by Plaintiff, the allegation against that Defendant will be dismissed for failure to 19 state a claim. Further, Plaintiff must comply with any specific directions set out by the Court 20 in its discussion of individual claims. Conclusory allegations that a Defendant or group of 21 Defendants have violated a constitutional right are not acceptable, and will be dismissed. 22 Plaintiff must clearly designate on the face of the document that it is the “First 23 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 24 entirety on the court-approved form and may not incorporate any part of the original 25 Complaint by reference. Plaintiff may include only one claim per count. 26 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 27 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 28 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as -5- JDDL-K 1 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original 2 complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 3 565, 567 (9th Cir. 1987). 4 VI. Warnings 5 A. Release 6 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 7 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 8 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 9 in dismissal of this action. 10 B. Address Changes 11 Plaintiff must file and serve a notice of a change of address in accordance with Rule 12 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 13 relief with a notice of change of address. Failure to comply may result in dismissal of this 14 action. 15 C. Copies 16 Plaintiff must submit an additional copy of every filing for use by the Court. See 17 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 18 to Plaintiff. 19 D. Possible “Strike” 20 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails 21 to file an amended complaint correcting the deficiencies identified in this Order, the 22 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 23 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 24 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 25 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 26 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 27 or fails to state a claim upon which relief may be granted, unless the prisoner is under 28 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). -6- 1 E. Possible Dismissal 2 If Plaintiff fails to timely comply with every provision of this Order, including these 3 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 4 1260-61 (a district court may dismiss an action for failure to comply with any order of the 5 Court). 6 IT IS ORDERED: 7 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. #3) is granted. 8 (2) As required by the accompanying Order to the appropriate government agency, 9 10 Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $1.20. (3) The Complaint (Doc. #1) is dismissed for failure to state a claim. Plaintiff has 11 30 days from the date this Order is filed to file a first amended complaint in compliance with 12 this Order. 13 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 14 Court must, without further notice, enter a judgment of dismissal of this action with prejudice 15 that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g). 16 17 18 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 16th day of December, 2009. 19 20 21 22 23 24 25 26 27 28 JDDL-K -7-
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