Opinion
No. CV 07-2247-PHX-DGC (LOA).
March 17, 2008
ORDER
Plaintiff Richard Paul Norris, who is confined in the Arizona State Prison Complex, SMU I, in Florence, Arizona, filed a pro se Complaint raising constitutional and other claims without paying the $350.00 civil action filing fee or a proper Application to Proceed In Forma Pauperis. (Dkt.# 1 at 2.) In an Order filed on January 22, 2008, the Court gave Plaintiff 30 days to pay the filing fee or to file a complete Application to Proceed In Forma Pauperis. (Dkt.# 9.) Plaintiff has filed a complete in forma pauperis application, a document captioned "Affidavit of Prejudice," in which he requests reassignment of this action to another judge, and a document captioned "Judicial Notice and Commercial Order to Discharge." (Dkt.# 10, 11, 12.) The Court will grant the in forma pauperis application. (Dkt.# 10.) The Court construes the "Affidavit of Prejudice" as a motion for recusal pursuant to 28 U.S.C. § 455, which will be denied. (Dkt.# 11.) To the extent any relief is sought in the "judicial notice," such relief will be denied. (Dkt.# 12.) Plaintiff's Complaint will be dismissed without leave to amend as legally frivolous in part and as not having accrued in part. (Dkt.# 1.)
Pro se pleadings should be construed liberally. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
I. Motion for Recusal.
Section 455(a) provides that a United States judge "shall disqualify" himself in any proceeding in which his "impartiality might reasonably be questioned." Section 455(b)(1) provides that a judge must also disqualify himself "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]" Recusal under § 455(b) is required only if the bias or prejudice stems from an extra-judicial source, not from conduct or rulings during the course of the proceedings. See Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1046 (9th Cir. 1987), aff'd, 496 U.S. 543 (1990);United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (judge's prior adverse rulings are insufficient cause for recusal). "[J]udicial rulings alone almost never constitute [a] valid basis for a bias or partiality motion." Liteky v. United States, 114 S.Ct. 1147, 1157 (1994). Thus, if Plaintiff is dissatisfied with the Court's ruling, his remedy is an appeal. The adverse ruling does not require recusal.
The only basis asserted for recusal in Plaintiff's motion is his disagreement with the Court's rulings in this case. He fails to show that the Court's impartiality might reasonably be questioned for purposes of § 455(a). The motion to recuse will therefore be denied.
II. Application to Proceed In Forma Pauperis and Filing Fee.
III. Statutory Screening of Prisoner Complaints.
In Forma Pauperis28 U.S.C. § 191528 U.S.C. § 191528 U.S.C. § 1915 28 U.S.C. § 1915A28 U.S.C. § 1915AHeck v. Humphrey512 U.S. 477489
IV. Complaint.
Plaintiff captions his Complaint as a "Complaint for False Imprisonment of Plaintiff's Creditor." (Dkt.# 1 at 1.) Plaintiff sues the State of Arizona by and through Arizona Attorney General Terry Goddard.
In his Complaint, Plaintiff identifies himself as "Richard Paul Norris (c) Ens legis an unincorporated trust and juristic person." (Dkt.# 1 at 1.) Plaintiff purports to grant the Court jurisdiction pursuant to the Uniform Commercial Code (UCC) §§ 1-103, 1-301 and he asserts this action sounds in contract, rather than under the Constitution, and that habeas corpus is "ineffective." (Id. at 1-2.) Nevertheless, he also asserts violation of Article I, § 10 of the Constitution for "impairing the obligation of contracts." (Id.) Further, he asserts violations of 18 U.S.C. §§ 1581 and 42 U.S.C. § 1994 regarding involuntary servitude and peonage. (Id.) He also claims violations of United States treaties, based on his purported status as a diplomatic or consular agent, and violation of Supreme Court holdings regarding the "non-applicability of law to sovereign entities." (Id.)
Other litigants have made similar assertions, typically in unsuccessful attempts to avoid legal liability for their acts.See, e.g., Miller v. Hassinger, 173 Appx. 948, n. 6 (3d Cir. 2006); Tchakarski v. U.S., 69 Fed. Cl. 218, 219 n. 1 (Fed.Cl. 2005); Hudson v. Caruso, No. 1:05-cv-32, 2007 WL 2363308 at *1 (W.D. Mich. Aug. 16, 2007); American Silver LLC v. Emanuel Covenant Communities, No. 2:06CV843DAK, 2007 WL 1468600 at *2, n. 6 (D. Utah May 17, 2007); Nelson v. Computer Credit, Inc., No. CIV 06-1054 JRT/FLN, 2006 WL 3858243 (D. Minn. 2006); United States v. Cooper, No. CV 05-0821 PHX-DGC, 2006 WL 3716749 at * 1, n. 1 (D. Ariz. Nov. 27, 2006); United States v. Saunders, No. 5:06mc3-RS, 2006 WL 2425515 at *2 (N.D. Fla. Aug. 18, 2006);United States v. Rivera, No. CR. 01-60124-HO, Civ. 05-6171-HO, 2005 WL 1745563 at *1 (D. Or. Jul. 22, 2005).
As the factual basis for his Complaint, Plaintiff alleges that he executed a security agreement, which he filed in Kentucky, making himself his own creditor. As his own creditor, Plaintiff claims a security interest in himself and, in his capacity as his creditor, asserts that he is a sovereign. He maintains that Defendants have failed to rebut affidavits filed by him as his own creditor. Plaintiff further states that as his own creditor, he "declared his Foreign Neutral Status by declaring, certifying, and publicly recording a Mission Statement of In Itinere by Apostille." (Id. at 4.) Plaintiff claims that he, as his creditor, is "falsely imprisoned in a state of peonage and involuntary servitude" and that Defendants have impaired his security interest in himself as creditor. Plaintiff demands that he, in his creditor capacity, and any of his collateral, be released. (Id. at 5.)
As explained in Ocean Rig ASA v. Safra Nat. Bank of New York, 72 F.Supp. 2d 193, 197 (S.D.N.Y. 1999):
An "Apostille" is a certificate of legalization specified by The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, Fed.R.Civ.P., appended to [Fed.R.Civ.P.] Rule 44. This Convention requires signatory countries to legalize documents by Apostille only; the Apostillization is similar to notarization. . . .
V. Release is Unavailable Pursuant to a Civil Complaint.
To invoke federal court jurisdiction, a litigant must satisfy the threshold requirement imposed by Article III of the Constitution by presenting a live case or controversy. See e.g.,Jackson v. California Dep't of Mental Health, 399 F.3d 1069, 1071 (9th Cir. 2005) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). Plaintiff purports to seek release from incarceration for his convictions and sentences pursuant to the UCC and other provisions. A prisoner's sole federal remedy to challenge the validity or duration of his confinement, however, is a petition for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004). Thus, to the extent that Plaintiff seeks to challenge his convictions and sentences, Plaintiff must commence an action pursuant to 28 U.S.C. § 2254 on the court-approved form. To the extent that the present Complaint seeks Plaintiff's release from custody, it will be dismissed as legally frivolous.
Plaintiff previously filed a petition for habeas corpus that was dismissed as premature. See Norris v. Schriro, No. CV 07-1300-PHX-SRB (JRI) (D. Ariz. Aug. 3, 2007). Plaintiff's direct appeal of his convictions remain pending before the Arizona Court of Appeals. See http://www.cofad1.state.az.us/casefiles/cr/cr070225.pdf.
VI. Heck v. Humphrey Bar.
Plaintiff asserts false arrest and imprisonment in part. A claim for false arrest and imprisonment can be the basis for compensatory relief under 42 U.S.C. § 1983. To state a claim under § 1983 for false arrest and imprisonment, a plaintiff must allege facts to support a lack of probable cause for his arrest.See Cabrera v. City of Huntingdon Park, 159 F.3d 374, 380 (9th Cir. 1998) (citing George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992)). Probable cause "exists when under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the person arrested] had committed a crime."Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991).
Even if Plaintiff brought a claim for false arrest pursuant to § 1983 and alleged sufficient facts to state a claim, this action would be barred under Heck v. Humphrey, 512 U.S. 477, 489 (1994). A civil rights claim brought pursuant to § 1983 that, if successful, would necessarily undermine the validity of a conviction or the duration of a sentence, may not be brought before the prisoner has obtained a "favorable termination" of the underlying conviction; Id. As noted above, a prisoner's sole federal remedy to challenge the validity or duration of his confinement is a petition for a writ of habeas corpus. Preiser, 411 U.S. at 500; Docken, 393 F.3d at 1031. That is, a civil rights claim under § 1983 does not accrue until the prisoner has obtained a "favorable termination" of the underlying conviction.See Heck, 512 U.S. at 489; Docken, 393 F.3d at 1031. Under the "favorable termination" rule:
In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by action whose unlawfulness would render a conviction of sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . . or called into question by a federal court's issuance of a writ of habeas corpus . . .Heck, 512 U.S. at 486-87.
In short, Plaintiff must obtain a favorable termination of his underlying convictions and/or sentences before he may seek civil relief for false arrest or imprisonment. Because Plaintiff has not yet done so, this action will be dismissed without prejudice to the extent that Plaintiff alleges a claim for false arrest or imprisonment. See Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997) (dismissal pursuant to Heck constitutes failure to state a claim under Fed.R.Civ.P. 12(b)(6)).
VII. Dismissal Without Leave to Amend.
The Court will not grant leave to amend because the defects in Plaintiff's Complaint cannot be cured by amendment. Where amendment would be futile, there is no reason to prolong litigation by allowing further amendments. Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of leave to amend is not an abuse of discretion where further amendment would be futile).
IT IS ORDERED:
(1) Plaintiff's "Affidavit of Prejudice" is construed as a motion for recusal, which is denied. (Dkt.# 10.)
(2) Plaintiff's Application to Proceed In Forma Pauperis is granted. (Dkt.# 10.)
(3) 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 $2.89.
(4) Plaintiff's document captioned "Judicial Notice and Commercial Order to Discharge" is denied to the extent that any relief is sought. (Dkt.# 12.)
(5) The Complaint is dismissed with prejudice except to the extent that Plaintiff asserts a claim for false imprisonment. Plaintiff's claim for false imprisonment is dismissed without prejudice as not accrued. (Dkt.# 1.)
(6) The Clerk of Court must enter judgment accordingly and must make an entry on the docket stating that the dismissal for failure to state a claim counts as a "strike" under 28 U.S.C. § 1915(g).