Opinion
CV-23-00072-TUC-BGM
06-21-2023
Deyoe R. Harris, Plaintiff, v. Sidney Thomas et al., Defendants.
REPORT AND RECOMMENDATION RE: SCREENING OF COMPLAINT
HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
On February 9, 2023, Plaintiff Deyoe R. Harris (“Plaintiff”), a non-prisoner, filed a pro se Complaint for Violation of Civil Rights. (Doc. 1.) Plaintiff's Complaint alleges claims under 42 U.S.C. § 1983 and Bivens against four defendants in their individual and official capacities. Plaintiff did not immediately pay the $402.00 civil action filing fee but lodged an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2). The Court granted Plaintiff's Application to Proceed in forma pauperis. (Doc. 6.) The United States District Judge designee, Senior United States District Court Judge Raner C. Collins, referred the matter to the Magistrate Judge for screening of the Complaint pursuant to 28 U.S.C. § 1915(e). (Doc. 10.) The Magistrate Judge recommends the District Judge dismiss Plaintiff's Complaint (Doc. 1) with prejudice.
The Court notes Plaintiff filed on June 20, 2023, a request for Status Conference/Summary Judgement Motion (Doc. 11), and finds that with the filing of this R&R, Plaintiff's motion (Doc. 11) is rendered, moot.
I. JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343 because Plaintiff has alleged constitutional claims against Defendants pursuant to 42 U.S.C. § 1983. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
II. INTRODUCTION
Plaintiff Deyoe R. Harris, a non-prisoner, filed a Pro se civil rights action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), and 42 U.S.C. § 1983. He subsequently was granted leave to proceed in forma pauperis. (Doc. 6.)
III. STATUTORY SCREENING OF PLAINTIFF'S COMPLAINT
Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted in forma pauperis status, the Court shall dismiss the case “if the court determines that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se individual] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “[O]ur ‘obligation' remains, ‘where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.'” Hebbe, 627 F.3d at 342 citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.1985) (en banc).
“District judges have no obligation to act as counsel or paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 2446 (2004). “[A] defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure” and “the Constitution [does not] require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course.” McKaskle v. Wiggins, 465 U.S. 168, 183-184, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), see also Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). “Requiring district courts to advise a pro se litigant in such a manner would undermine district judges' role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 2446 (2004). However, if the Court determines that a pleading could 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).
IV. COMPLAINT - FAILURE TO STATE A CLAIM
Plaintiff's Complaint for Violation of Civil Rights alleges four defendants, acting in their individual, and or official capacities, violated Plaintiff's due process and civil rights. (Doc. 1.) Plaintiff's Complaint alleges claims under 42 U.S.C. § 1983 and Bivens.
For the first claim, Plaintiff alleges under 42 U.S.C. § 1983, that Tucson City Attorney Baird Stephen Greene, “[f]ail[ed] to properly identif[y] poliee [ sic ] officers in a Federal trial is a violation of Due Process. Docet [sic] entry 13 of 18-15159 Harris v. University of Arizona Police Department, demonstrates that the two City of Tucson Attorneys listed failed to properrly [sic] identify Tucson police officers listed as defendants.” Complaint (Doc. 1 at 3.) Plaintiff further alleges under § 1983 that “[t]hese individuals used the authority given to them by their respective employers in a way that violated [his] due process and civil rights.” (Doc. 1 at 4.)
The Court notes, Plaintiff only identified one Tucson City Attorney in his Complaint.
For the second claim, Plaintiff alleges, under Bivens, that three Ninth Circuit judges, i.e., Circuit Judge Sidney R. Thomas (Billings), Senior Circuit Judge Michael D. Hawkins (Phoenix), and Senior Circuit Judge M. Margaret McKeown (San Diego) “violated my Due Process by ignoring their own finding that ought to have resulted in a mistrial. Docet [ sic ] Entry 13 18-15159.” Complaint (Doc. 1 at 2-4.) And although Plaintiff does not separately list Magistrate Judge Kimmins as a defendant for his claim under Bivens, he describes, “[t]hat entry also proves that Arizona Magistight [ sic ] Judge Kimmins also violated my Due Process by not ensuring the City of Tucson Attorneys listed identifyied the Tucson Police Officers correctly. (Doc. 1 at 4.)
“A complaint may be dismissed for failure to state a claim for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (as amended). When screening a complaint to determine whether it states a viable claim, courts apply the same standard used to evaluate a motion to dismiss under Federal Rules of Civil Procedure Rule 12(b)(6) (“Rule 12(b)(6)”). See e.g. Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam).
A. Prosecutor Immunity
Prosecutors are absolutely immune from liability for damages under § 1983 for their conduct in “initiating a prosecution and in presenting the State's case” insofar as that conduct is “intimately associated with the judicial phase of the criminal process.” Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 43031 (1976)). Immunity even extends to prosecutors for “eliciting false or defamatory testimony from witnesses or for making false or defamatory statements during, and related to, judicial proceedings.” Buckley, 509 U.S. at 270; see also Broam v. Bogan, 320 F.3d 1023, 1029-30 (9th Cir. 2003) (prosecutor absolutely immune from liability for failure to investigate the accusations against a defendant before filing charges; for knowingly using false testimony at trial; and for deciding not to preserve or turn over exculpatory material before trial, during trial, or after conviction); Roe v. City & County of S.F., 109 F.3d 578, 583-84 (9th Cir. 1997) (absolute immunity for decision to prosecute or not to prosecute and for professional evaluation of a witness and evidence assembled by the police).
B. Judicial Immunity
Judges are absolutely immune in Bivens suits for damages for their judicial acts except when they are taken “in the ‘clear absence of all jurisdiction.'” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Against federal judges, absolute immunity also “extends to actions for declaratory, injunctive and other equitable relief.” Mullins v. United States Bankr. Ct. for the D. of Nev, 828 F.2d 1385, 1394 (9th Cir. 1987). An act is “judicial” when it is a function normally performed by a judge and the parties dealt with the judge in his or her judicial capacity. Stump, 435 U.S. at 362; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990). This immunity attaches even if the judge is accused of acting maliciously and corruptly, Pierson v. Ray, 386 U.S. 547, 554 (1967), or of making grave errors of law or procedure, see Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988).
V. ANALYSIS
Defendant Baird Stephen Greene, Esq. - Plaintiff alleges he suffered injuries because prosecuting attorney, Baird Greene, failed to properly identify police officers in a federal trial, thereby violating Plaintiff's due process by failing to act. Plaintiff further alleges Defendant Greene acted “under color of federal law,” when “[t]hese individuals used the authority given to them by their respective employers in a way that violated my due process and civil rights.” (Doc. 1 at 4.) Plaintiff seeks relief under 42 U.S.C. § 1983 in the form of monetary damages and prison time.
Prosecutors are absolutely immune from liability for damages under § 1983 for their conduct in “initiating a prosecution and in presenting the State's case” insofar as that conduct is “intimately associated with the judicial phase of the criminal process.” Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993).
This shield from liability extends to omissions, i.e., failure to act, as well. See Hilliard v. Williams, 540 F.2d 220, 221 (6th Cir.1976) (per curiam) (holding that notwithstanding acts and omissions of state prosecutor in withholding certain information and in failing to prevent or correct deceptive and misleading testimony “‘deprived [the state defendant] of her constitutional right to a fair trial,'” prosecutor was absolutely immune). Furthermore, prison is not a remedy in a civil lawsuit. See Civil Action, Black's Law Dictionary (11ht ed. 2019) (“an action brought to enforce, redress, or protect a private or civil right; a noncriminal litigation.”)
Any alleged omission or oversight-by Baird Greene in his official capacity as a Tucson City prosecuting attorney-brought forth by Plaintiff, is shielded against liability for damages, absolutely. The entitlement is an immunity from suit rather than a mere defense to liability[.] Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815 (1985); see also Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982).
The Court notes Baird Greene, Esq., is now the Chief Deputy of the Pima County Attorney's Office.
The Court finds Plaintiff's first claim under 42 U.S.C. § 1983 against Defendant, Baird Stephen Greene, Esq., whether in his official or personal capacity, fails to state a cognizable legal theory for relief, as Plaintiff's claims involve Baird Greene's “initiating a prosecution and in presenting the State's case” and or was “intimately associated with the judicial phase of the criminal process” affording Mr. Greene absolute immunity. See Balistreri, supra, Buckley supra.
B. Bivens claim(s)
Ninth Circuit Judges - Under Bivens, Plaintiff's Complaint (Doc. 1) alleges three Ninth Circuit judges, Circuit Judge Sidney R. Thomas (Billings), Senior Circuit Judge Michael D. Hawkins (Phoenix), and Senior Circuit Judge M. Margaret McKeown (San Diego), i.e., “[t]he 9th Circuit Judges violated [his] Due Process by ignoring their own finding that ought to have resulted in a mistrial” and Plaintiff references the following “Docet [sic] Entry 13 18-15159.” (Doc. 1 at 3-4.) Plaintiff fails to include any facts describing specific “findings” or how these “findings” would have resulted in a mistrial. Plaintiff alleges injury based on “[t]he inability to prosocute [ sic ] uniformed officals [ sic ] for excessive force and purjury [ sic ] and an illegal Grand Jury ‘sercret session' indictment for asslut [ sic ] on offiers [ sic ] that was dissmissed by the State of Arizona because tapes proved those officers beat me or that I didn't assult [ sic ] them ARE injurys [ sic ] and I hope you can agree[,]” and Plaintiff asserts “[a]ll the injuries from the individuals in this suit are non-physical but injuries non-the-less.” (Doc. 1 at 5.) However, Plaintiff fails to include facts to link up any actions, or omissions, by the three Ninth Circuit Judges to the ‘injuries' complained of stemming from adjudication of his case at the trial level or how an ‘inability to prosecute' creates a legally cognizable injury. Plaintiff's Complaint (Doc. 1) seeks relief under Bivens in the form of monetary damages and prison time.
Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), a plaintiff may sue federal officials for the violation of certain constitutional rights. To state a valid claim under Bivens, plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377, 96 S.Ct. 598 (1976).
Judges, however, are absolutely immune in Bivens suits for damages for their judicial acts except when they are taken “in the ‘clear absence of all jurisdiction.'” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986).
Plaintiff's reference to “Docet [ sic ] Entry 13 18-15159” in the Complaint (Doc. 1) is presumably found in the Exhibit (Doc. 1-1 at 9), attached to Plaintiff's Complaint, and the entry at Docket Entry 13 states the following:
(Doc. 1-1 at 9.) At the time of this Docket Entry, March 1, 2019, no jurisdictional issues appear in the Docket 18-15159, attached to Plaintiff's Complaint (Doc. 1, Doc. 1-1.)
03/01/2019
13
Terminated Baird Stephen Greene for Unknown Rohr, Stephen H. Placencia, Michael James Pelton, Michaelo D. Krammes, Stephaine A. Heivili, Gary K. Downward, Jeffery Dellinger and Metthew W. Alexander in 18-15159 (due to incorrect ECF contact information) [11213107] (RY) [Entered: 03/01/2019 01:35 PM]
Plaintiff's appeal to the Ninth Circuit “challenge[d] the jury's verdict finding Appellees did not use excessive force during a 2013 stop where Harris was tased, handcuffed, and taken to the hospital.” Harris v. Univ. of Ariz. Police Dept., et al., No. 181519, Mem. Decision (9th Cir. Aug. 5, 2020) (affirming jury's verdict in favor of Defendants-Appellees). According to Plaintiff's attached exhibit, the Mandate issued on August 31, 2020 (Doc. 1-1 at 13, Entry 53) and a letter filed January 22, 2021, notified Harris that the Mandate for this appeal issued on 08/31/20. (Doc. 1-1 at 13, Entry 62.)
No question regarding jurisdiction of the three Ninth Circuit judges was raised in Harris v. Univ. of Ariz. Police Dept., et al., No. 18-1519; and subsequently, the Mandate issued on August 31, 2020. No facts were included in Plaintiff's subject Complaint (Doc. 1) to link Plaintiff's bald claim that the three Ninth Circuit judges-“by ignoring their own finding that ought to have resulted in a mistrial. Docet [sic] Entry 13 18-15159[,]” (see Doc. 1 at 3-4)-caused Plaintiff a specific injury, incurred by specific conduct of a defendant, nor did Plaintiff show an affirmative link between the injury and the conduct of the three defendants. See Rizzo v. Goode, supra.
The Court finds Plaintiff's second claim under Bivens-against the three Ninth Circuit judges, i.e., Circuit Judge Sidney R. Thomas (Billings), Senior Circuit Judge Michael D. Hawkins (Phoenix), and Senior Circuit Judge M. Margaret McKeown (San Diego), whether alleged in their official or personal capacities-fails to state a cognizable legal theory for relief. Balistreri, supra. Plaintiff fails to describe or point to facts that demonstrate that the defendants acted outside of their jurisdiction, therefore, absolute immunity applies. Stump, supra.
U.S. District Court Magistrate Judge Lynnette C. Kimmins - Plaintiff further alleges under Bivens that Magistrate Judge Kimmins violated due process for failing to ensure [that] the prosecuting attorney list the Tucson Police Officers [as defendants] correctly [in the underlying action]. (Doc. 1 at 4.) Similar to the three Ninth Circuit Judges, no facts demonstrate Magistrate Judge Kimmins acted outside of her jurisdiction, therefore, she is afforded absolute immunity.
No question regarding jurisdiction of Magistrate Judge Kimmins was raised in Harris v. Dillinger 4:14-cv-02453-LCK during Plaintiff's appeal to the Ninth Circuit.
As a Federal Magistrate Judge, Magistrate Judge Kimmins is a federal officer and therefore is protected from suits requesting damages based on alleged claims of constitutional violations such as due process. Stump, supra.
Based on the foregoing, although not identified separately in the Complaint, the Court finds Plaintiff second claim under Bivens, to be clear, any claim alleged against Magistrate Judge Kimmins, whether in her official or personal capacity, fails to state a cognizable legal theory for relief, as any alleged act or alleged omission was taken in Magistrate Judge Kimmins' “judicial capacity.” Balistreri, supra, Stump, supra.
The Court further finds that there are no possible allegations of fact that will correct Plaintiff's Complaint (Doc. 1), as all of the alleged defendants are afforded absolute immunity. Stump, supra; Buckley, supra. Dismissal with prejudice is appropriate only when the complaint cannot be saved by amendment. Cambron v. Starwood Vacation Ownership, Inc., 945 F.Supp.2d 1133, 1146 (D. Haw. 2013) citing Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003).
VI. CONCLUSION
General Order 21-25 directs this Court to prepare a Report and Recommendation to appropriate designee. Accordingly, the Court directs this Report and Recommendation to the Honorable Raner C. Collins. For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order:
(1) DISMISSING Plaintiff's Complaint (Doc. 1) WITH PREJUDICE.
(2) RENDERING MOOT the Report and Recommendation previously filed on June 2, 2023 (Doc. 8).
(3) RENDERING MOOT Plaintiff's Objection filed June 5, 2023 (Doc. 9).
(4) RENDERING MOOT Plaintiff's Status Conference/Summary Judgement Motion (Doc. 11).
(5) RENDERING MOOT Plaintiff's request for pro bono counsel. (Doc. 9.)
Plaintiff's Objection to R&R (Doc. 9), paragraph two, states, “Because my in formus paupus [ sic ] was accepted I thought the Court would assign me a pro bono lawyer given this is a civil rights case and I reasonably proved my inability to pay so “a lawyer should be provided.” (Doc. 9 at ¶ 2.) A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford counsel”; i.e., it is discretionary.
VII. RECOMMENDATION
Based on the screening of Plaintiff's Complaint (Doc. 1), and Plaintiff's failure to state a cognizable claim because the named defendants are afforded absolute immunity, and no additional facts would cure the deficiencies, the Complaint should be dismissed and Plaintiff's request for pro bono counsel should be rendered moot.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-23-00072-TUC-RCC. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.