Opinion
CV-23-00294-PHX-DWL (JFM)
07-25-2024
Laquint Henry Lee Cherry, Plaintiff, v. Davison, et al., Defendants
ORDER
Dominic W. Lanza, United States District Judge
Plaintiff Laquint Henry Lee Cherry, who is currently confined in the Arizona State Prison Complex-Florence, filed this pro se civil rights action. Pending before the Court are: (1) Plaintiff's Motion for Emergency Injunctive Relief (Doc. 66); (2) Plaintiff's Motion for Federal Relief (Doc. 85); (3) Plaintiff's Motion to Appoint Counsel (Doc. 99); (4) the Magistrate Judge's July 3, 2024 Report and Recommendation (Doc. 127); (5) Plaintiff's Motion for Justice (Doc. 128); and (6) Plaintiff's “Motion to Appeal for More Time and Justice of a [sic] Unarmed Blackman” (Doc. 132).
I. Background
On August 3, 2023, Plaintiff filed his Third Amended Complaint (Doc. 21) in this action. (Doc. 21.) Plaintiff's claims arose while he was confined in the Maricopa County Fourth Avenue Jail, and Defendants are Maricopa County Sheriff's Office employees. (Id.) In analyzing whether Plaintiff should be permitted to amend his prior operative Complaint, the Court found that Plaintiff stated Fourteenth Amendment excessive force claims as follows: (1) against Defendants Davison and Officer John Doe 1 based on allegations that on April 7, 2021, Defendants Davison and Officer John Doe 1 slammed his head several times and placed him in a chokehold; (2) against Defendants Jacobson and Officers John Does 2-7 based on Plaintiff's allegations that on April 25, 2023, Defendants Jacobson and Officers John Doe 2 through 7 sprayed him with three cans of pepper spray and punched him; and (3) against Defendants Redfern and Divine based on allegations that on April 25, 2023, Defendants Sergeants Redfern and Divine punched and kicked Plaintiff, forced Plaintiff's head in the latrine hole, and Divine then put him in a chokehold. (Docs. 22, 34.)
II. Plaintiff's Motion for Emergency Injunctive Relief (Doc. 66)
In his Motion, Plaintiff wrote that unnamed Arizona Department of Corrections officers searched his cell and destroyed all his paperwork. Plaintiff further wrote “I was raped and beaten they [sic] broke my back rib. I have witness that Katie Hobbs was involved.” (Doc. 66.) As relief, Plaintiff seeks “to expedite this lawsuit and appoint court paid private counsel” and to “resend all paperwork ever wrote and the paperwork to serve the lawsuits; fifteen of each.” (Id.)
In other documents Plaintiff has filed in this case, Plaintiff acknowledges that he is seriously mentally ill. (See, e.g., Doc. 85 at 1; Doc. 99.) Plaintiff has also previously demonstrated a fixation on non-Defendant Arizona Governor Katie Hobbs. (See, e.g., Doc. 22 at 10.) Plaintiff's allegations are frivolous, unsupported, conclusory, and exceed the jurisdictional scope of this lawsuit.
To the extent Plaintiff needs any specific copies of documents previously filed in this lawsuit, he may seek such copies by specifically identifying the documents and why he needs them, and may request a copy of the Court's docket if necessary. To the ext ent Plaintiff cannot identify special circumstances justifying the issuance of free copies, he must seek such copies from the Clerk of the Court and pay the relevant fees for such copies. See In Re Richard, 914 F.2d 1526, 127 (6th Cir. 1990) (per curiam) (28 U.S.C. § 1915 “does not give a litigant a right to have documents copied and returned to him at government expense”); Judicial Conference Schedule of Fees & 4, foll. 28 U.S.C. § 1914.
For the foregoing reasons, Plaintiff's Motion will be denied.
III. Plaintiff's Motion for Federal Relief (Doc. 85)
In his Motion, Plaintiff asserts that “[t]he Arizona Department of Corrections, Governor's Office, FBI, law enforcement, Federal Bureau of Investigation [sic] have been illegally searching, reading, editing, [sic] potential legal notes and property to a [illegible] and defense to the courts and legal counsel which is right to a [sic] attorney.” (Doc. 85 at 1-2.) As relief, Plaintiff requests “safe storage and proper correspondence] with the court to properly file on timeline of the court and successfully continue lawsuit .” (Id.)
Plaintiff's allegations are frivolous, unsupported, conclusory, and exceed the jurisdictional scope of this lawsuit. Plaintiff has not established any basis on which to obtain injunctive relief and has not identified any specific facts establishing that he has been unable to prosecute this lawsuit due to non-Defendant third parties' alleged actions.
Accordingly, Plaintiff's Motion will be denied.
IV. Plaintiff's Motion to Appoint Counsel (Doc. 99)
In his Motion, Plaintiff states that he should be appointed counsel because he is seriously mentally ill and learning disabled. (Doc. 99.) Plaintiff previously sought and was denied counsel three times based on these same allegations. (Doc. 13 at 7; Doc. 22 at 15; Doc. 34 at 2.) Plaintiff has not identified any deficiencies in the Court's prior analysis of this issue and has not set forth any new facts demonstrating an entitlement to counsel in this action. Accordingly, Plaintiff's Motion to Appoint Counsel is denied.
V. The Magistrate Judge's July 3, 2024 Report and Recommendation (Doc. 127), Plaintiff's Motion for Justice (Doc. 128) and “Motion to Appeal for More Time and Justice of a [sic] Unarmed Blackman” (Doc. 132)
In his Report and Recommendation, the Magistrate Judge recommended that Defendants Jacobson, Davison, and Officers John Does 1 through 7 be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The Report and Recommendation contains a thorough review of Plaintiff's past attempts to serve these Defendants and Plaintiff's efforts and lack of efforts to serve these Defendants. (Doc. 127.) The Magistrate Judge further noted that he previously ordered Plaintiff to show cause why the unserved Defendants should not be dismissed for failure to timely effect service, but Plaintiff did not respond to that Order to Show Cause. (Id.) The Court construes Plaintiff's Motion for Justice (Doc. 128) and Motion to Appeal (Doc. 132) as objections to the Magistrate Judge's Report and Recommendation.
To the extent these Motions seek other relief, such relief is unclear, and any other relief sought therein will be denied.
Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, parties may file objections to a magistrate judge order within fourteen days after being served with a copy of the order. The Court must then consider these objections and “modify or set asid e any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a).
In his Motion for Justice, Plaintiff states that he needs to “appeal dismissal due to new evidence” in the form of “video footage involving one of the crimes.” (Doc. 128 at 2.) Plaintiff appears to say that this video footage will help him or others identify certain Defendants. Plaintiff does not explain what the video footage is, how it helps identify certain Defendants, or helps Plaintiff in his efforts to serve them, and Plaintiff does not respond substantively to the Magistrate Judge's Report and Recommendation. Accordingly, to the extent Plaintiff's Motion for Justice was intended as an objection to the Report and Recommendation, the objection is overruled.
Plaintiff's Motion to Appeal for more time is difficult to understand. Plaintiff appears to seek some discovery, but also asks for an “injunction to reopen” his case because it was “dismissed out of nowhere.” (Doc. 132.) Plaintiff also requests “service packets along with help from the Clerk to serve governor[']s office Katie Hobbs [sic], ex-sheriff Paul Penzone, MCSO and Maricopa County, State of Arizona.” (Doc. 132 at 3.) However, none of those listed are Defendants in this lawsuit. Plaintiff again does not substantively address the Magistrate Judge's Order or the reasoning therein. Accordingly, to the extent Plaintiff's Motion to Appeal is an objection to the Magistrate Judge's Report and Recommendation, it is overruled.
District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the [R&R] to which objection is made.”). Because Plaintiff makes no specific objection to any of the Magistrate Judge's reasoning, the Court will accept and adopt the Magistrate Judge's July 3, 2024 Report and Recommendation, and Defendants Jacobson, Davison, and Officers John Doe 1 through 7 will be dismissed without prejudice.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Emergency Injunctive Relief (Doc. 66), Plaintiff's Motion for Federal Relief (Doc. 85), Plaintiff's Motion to Appoint Counsel (Doc. 99), Plaintiff's Motion for Justice (Doc. 128), and Plaintiff's “Motion to Appeal for More Time and Justice of a [sic] Unarmed Blackman” (Doc. 132).
(2) Plaintiff's Motion for Emergency Injunctive Relief (Doc. 66), Plaintiff's Motion for Federal Relief (Doc. 85), Plaintiff's Motion to Appoint Counsel (Doc. 99), Plaintiff's Motion for Justice (Doc. 128), and Plaintiff's “Motion to Appeal for More Time and Justice of a [sic] Unarmed Blackman” (Doc. 132) are denied.
(3) The Magistrate Judge's July 3, 2024 Report and Recommendation (Doc. 127) is accepted and adopted. Defendants Jacobson, Davison, and Officers John Doe 1 through 7 are dismissed from this action without prejudice.