Opinion
CV-23-00781-PHX-JAT (ESW)
06-13-2023
Timothy Huntley Williams, Plaintiff, v. Nick Saccone, et al., Defendants.
ORDER
Plaintiff Timothy Huntley Williams, who is confined in a Maricopa County Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to amend.
I. Application to Proceed In Forma Pauperis and Filing Fee
The Court will grant Plaintiff's Application to Proceed In Forma Pauperis. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $7.33. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
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 prisoner] ‘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)).
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).
Plaintiff's Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
III. Complaint
Plaintiff seeks $100 trillion dollars in damages and names the follow Defendants in his Complaint: Maricopa County Superior Court Commissioner Nicholas Saccone, Public Defender Anthony Novitski, Scottsdale Police Department, Prosecutor for the State of Arizona, Maricopa County Adult Probation, the State of Arizona Legislature, and the United States of America.
Plaintiff raises ten claims for relief:
(1) Plaintiff's Sixth Amendment rights were violated when Defendant Saccone “did not follow proper procedure” in CR 2020-107383 and Plaintiff has “spent a lot of unnecessary time in jail”;
(2) Defendant Saccone violated Plaintiff's Eighth Amendment rights by failing to follow proper procedure in CR 2020-107383 and Plaintiff has “spent a lot excessive amount of time in jail”;
(3) Defendant Saccone “enforced law that abridged [his] privileges and immunities” in CR 2020-107383, in violation of the Fourteenth Amendment;
(4) Plaintiff's attorney, Defendant Novitski, “did not properly represent [Plaintiff], case CR 2020-107383,” in violation of the Sixth Amendment;
(5) Defendant State of Arizona “did not follow proper procedure case CR 2020107383,” and violated Plaintiff's Fifth Amendment rights;
(6) Defendant State of Arizona “did not follow proper procedure, CR 2020107383,” and violated Plaintiff's Sixth Amendment rights;
(7) Defendant State of Arizona “did not follow proper procedure, CR 2020107383,” in violation of Plaintiff's Eighth Amendment rights;
(8) Defendant State of Arizona “did not follow proper procedure Cr 2020107383,” in violation of the Fourteenth Amendment;
(9) Defendant Adult Probation violated the Eighth Amendment when it “did not follow proper procedure,” because Plaintiff was “not even suppose[d] to be on probation”; and
(10) Plaintiff is “pretty sure that was probably Scottsdale Police's first and only J-walking incident”; they “did not follow proper procedure,” in violation of the Fourteenth Amendment; and Plaintiff did not “knowingly commit any crime, CR 2020-107383.”
Plaintiff's state criminal proceedings in CR 2020-107383 are ongoing. See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp?caseNu mber=CR2020-107383 (last visited Jun. 5, 2023) [https://perma.cc/YGN4-WKL9].
IV. Failure to State a Claim
A. Defendant Saccone
Judges are absolutely immune from § 1983 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, 356-357 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). 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, Peirson v. Ray, 386 U.S. 547, 553-54 (1967), or of making grave errors of law or procedure, Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). Regardless of the judge's status in the judicial hierarchy, a judge has absolute immunity for acts performed in the judge's official capacity. See Tanner v. Heise, 879 F.2d 572, 577-78 (9th Cir. 1989) (magistrate); Brewer v. Blackwell, 692 F.2d 387, 396 (11th Cir. 1982) (justice of the peace); O=Neill v. City of Lake Oswego, 642 F.2d 367 (9th Cir. 1981) (pro tem municipal judge).
Plaintiff sues Defendant Saccone for his actions in conducting Plaintiff's criminal proceedings. Defendant Saccone is absolutely immune from suit for those acts. Therefore, the Court will dismiss him.
B. Defendant Novitski
A prerequisite for any relief under § 1983 is a showing that the defendant has acted under the color of state law. Whether an attorney representing a criminal defendant is a public defender or court-appointed counsel, he or she does not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 317-18 (1981). Accordingly, Plaintiff's claim against Defendant Novitski cannot be brought under § 1983, and the Court will dismiss Defendant Novitski.
C. Scottsdale Police Department
Defendant Scottsdale Police Department is a subpart of the City of Scottsdale, not a separate entity for purposes of suit. Gotbaum v. City of Phoenix, 617 F.Supp.2d 878, 886 (D. Ariz. 2008); see Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz.Ct.App. 2010) (county sheriff's office is a nonjural entity); see also Vicente v. City of Prescott, 2012 WL 1438695, at *3 (D. Ariz. 2012) (city fire department is a nonjural entity); Wilson v. Yavapai Cty. Sheriff's Off., 2012 WL 1067959, at *4 (D. Ariz. 2012) (county sheriff's office and county attorney's office are nonjural entities). Because Defendant Scottsdale Police Department is not a separate entity, it is not capable of being separately sued. Thus, the Court will dismiss Defendant Scottsdale Police Department.
Moreover, even if Plaintiff had sued the City of Scottsdale, his allegations do not support a claim. A municipality may not be sued solely because an injury was inflicted by its employees or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). The actions of individuals may support municipal liability only if the employees were acting pursuant to an official policy or custom of the municipality. Botello v. Gammick, 413 F.3d 971, 978-79 (9th Cir. 2005). A § 1983 claim against a municipal defendant “cannot succeed as a matter of law” unless a plaintiff: (1) contends that the municipal defendant maintains a policy or custom pertinent to the plaintiff's alleged injury; and (2) explains how such policy or custom caused the plaintiff's injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant to Fed.R.Civ.P. 12(b)(6)). Plaintiff has failed to allege facts to support that the City of Scottsdale maintained a specific policy or custom that resulted in a violation of Plaintiff's federal constitutional rights and has failed to explain how his injuries were caused by any municipal policy or custom.
D. Maricopa County Adult Probation Office
The Maricopa County Adult Probation Office is not a proper defendant because it is simply an administrative division of Maricopa County and not a separate entity for purposes of suit. See Wilson, 2012 WL 1067959, at *4 (D. Ariz. 2012) (county sheriff's office and county attorney's office are nonjural entities). Maricopa County Adult Probation is therefore an improper Defendant and the Court will dismiss it.
E. State of Arizona Prosecutor
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). Plaintiff's claims against the prosecutor in his criminal case all relate to the prosecutor's actions in that case. Accordingly, the prosecutor is immune from suit under § 1983.
F. State of Arizona and State of Arizona Legislature
Under the Eleventh Amendment to the Constitution of the United States, a state or state agency may not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, “a state is not a ‘person' for purposes of section 1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted).
Therefore, the Court will dismiss Defendant State of Arizona. ....
A state legislature is not a “person” for purposes of § 1983 liability. Further, individual state legislators are entitled to absolute immunity from suit under § 1983 for legislative acts. See Bogan v. Scott-Harris, 523 U.S. 44, (1998) (“state and regional legislators are entitled to absolute immunity from liability under § 1983 for their legislative activities.”); Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); see Kaahumanu v. County of Maui, 315 F.3d 1215, 1219 (9th Cir. 2003); Kuzmich, 689 F.2d at 1349. Accordingly, the State of Arizona Legislature is not a proper Defendant and will be dismissed.
G. United States of America
Sovereign immunity prevents actions against the United States . Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1985); Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir. 1983); see also Gerritsen v. Consulado General De Mexico, 989 F.2d 340, 343 (9th Cir. 1993) (federal agencies are immune from suit and the district courts lack jurisdiction over them absent express statutory authorization). Plaintiff does not identify any statute that serves to waive sovereign immunity with respect to his claims. Accordingly, Defendants United States of America, United States Bureau of Prisons, United States Department of Justice are immune from suit in this Bivens action.
V. Leave to Amend
For the foregoing reasons, the Court will dismiss Plaintiff's Complaint for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the “First Amended Complaint.” The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. RichardFeiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
VI. Warnings
A. Release
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
C. Possible “Strike”
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
D. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $7.33.
(3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot.
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.