Opinion
CV-24-01364-PHX-JAT (ASB)
08-20-2024
Brad Elliout Porter, Plaintiff, v. Laura J. Giaquinto, et al., Defendants.
ORDER
Self-represented Plaintiff Brad Elliout Porter, who is confined in a Maricopa County Jail, has filed a civil rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983 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 $6.73. 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 [self-represented litigant's] filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a self-represented 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 self-represented 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). The Court will dismiss Plaintiff's Complaint 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
In his three-count Complaint, Plaintiff sues Maricopa County Superior Court Judicial Commissioner Laura J. Giaquinto, the Inmate Legal Services (ILS) Coordinator, and the Lower Buckeye Jail Grievance Coordinator. Plaintiff seeks money damages.
In Count One, Plaintiff alleges violations of his due process rights. Plaintiff claims that on April 17, 2024, Defendant Giaquinto declared Plaintiff a self-represented criminal defendant, removed Plaintiff's counsel from his criminal case, and appointed the Office of Public Defender Services as advisory counsel “without specifying if OPDS should appoint new advisory [counsel].” Plaintiff claims this “places a burden on whom [he] would ask for the necessary questions [he needs] answered before submitting motions or asking for minute entries.” Plaintiff further claims Defendant Giaquinto delayed in updating the system to remove Plaintiff's counsel until April 29, 2024, meaning Plaintiff had only one day to prepare motions that were due on May 1, 2024. Plaintiff claims Defendant Giaquinto “forced a default.”
In Count Two, Plaintiff claims Defendant ILS Coordinator “has been continuously late processing documents and abusing [their] discretion as to which documents are correct or incorrect submittals.” Plaintiff claims ILS “can be very finicky . . . and confusing [for] inmates needing legal information, supplies, research or assistance.” Plaintiff contends “this causes many error and default judgments, making it very hard for justice to be served.” As his injury, Plaintiff states, “default judgment entered because delay in processing documents/motions” and “high anxiety, lack of sleep, mild depression, experiencing very high mental health issues.”
In Count Three, Plaintiff alleges Defendant Grievance Coordinator has denied his due process rights by failing to properly process grievances. Plaintiff states he has two unanswered paper grievances and three grievances on his tablet “that got closed even when [he] escalated them.” He claims one grievance did not receive a response for 30 to 45 days, and one has been pending since March. Plaintiff asserts detention officers walk past his forms “for days” and some refuse to give their badge numbers. Plaintiff contends this “makes this very unsafe, makes it hard to ask for help or get understanding on an issue.” IV. Failure to State a Claim
A. Count One
First, Defendant Giaquinto is absolutely immune from suit under § 1983. Judges are immune except for acts not taken in their judicial capacity or taken in the absence of all jurisdiction. Sadoski v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006); Harvey v. Waldron, 210 F.3d 1008, 1012 (9th Cir. 2000). Immunity attaches even if the act was erroneous or injurious, and irrespective of the judge's motivation, Harvey, 210 F.3d at 1012 (citing Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)), and even if the judge is accused 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. 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). Accordingly, Plaintiff has failed to state a claim against Defendant Giaquinto.
Further, to the extent Plaintiff challenges the validity of his ongoing criminal proceedings, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents a federal court in most circumstances from directly interfering with ongoing criminal proceedings in state court. The Younger doctrine espouses a “strong federal policy against federal-court interference with pending state judicial proceedings, absent extraordinary circumstances.” Middlesex Cnty. Ethics Comm. v. Garden State Bar 457 U.S. 423, 431 (1982). “The policy rests on notions of comity and respect for state functions and was born of the concern that federal court injunctions might unduly hamper state criminal prosecutions.” Champion Int'l Corp. v. Brown, 731 F.2d 1406, 1408 (9th Cir. 1984) (citing Younger, 401 U.S. at 44).
In deciding whether Younger abstention applies, the Ninth Circuit applies the threepronged test outlined by the Supreme Court in Middlesex: (1) the state proceedings are ongoing, (2) the proceedings implicate important state interests, and (3) the state proceedings provide an adequate opportunity to raise federal questions. Fresh Int'l Corp. v. Agric. Labor Relations Bd., 805 F.2d 1353, 1357-58 (9th Cir. 1986) (citing Middlesex, 457 U.S. at 432).
In this case, each of the three requirements are met: Plaintiff's criminal proceedings are ongoing; the proceedings implicate important state interests in the prosecution of criminal activity; and Plaintiff has the opportunity in his state criminal proceedings to raise claims relating to his Sixth Amendment right to counsel. Accordingly, abstention in this case is appropriate and the Court will dismiss Count One without prejudice.
B. Count Two
Plaintiff claims in Count Two that his due process rights are violated by Defendant ILS Coordinator's delays in processing inmate legal documents and by confusing procedures. Although not clear, it appears Plaintiff is attempting to raise an access-to-courts claim.
The right of meaningful access to the courts prohibits officials from actively interfering with inmates' attempts to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring petitions or complaints to federal court and not a right to discover such claims or even to litigate them effectively once filed with a court. Id. at 354. The right “guarantees no particular methodology but rather the conferral of a capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.” Id. at 356.
As a matter of standing, for an access-to-courts claim, a plaintiff must show that he suffered an “actual injury” with respect to contemplated litigation. Id. at 349. To show actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the defendants' conduct frustrated or impeded him from bringing to court a nonfrivolous claim that he wished to present. Id. at 352-53.
“[T]he injury requirement is not satisfied by just any type of frustrated legal claim.” Id. at 354. The right of access to the courts “does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous claim must be a direct or collateral attack on the inmate's sentence or a challenge to the conditions of his confinement. Id. “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. (emphasis in original).
Plaintiff's allegation that a “default judgment was entered” because of processing delays is too vague to state a claim. Plaintiff does not identify the case or court in which default judgment was entered, nor has he alleged any relevant dates such as filing deadlines, when he submitted documents to ILS for filing with the courts, or when or if he filed a motion for extension of time. Accordingly, Plaintiff has failed to state a claim in Count Two.
C. Count Three
In Count Three, Plaintiff claims his due process rights are violated by detention staff's failure to properly process his grievances. Prisoners have a First Amendment right to file prison grievances, Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005), but “[t]here is no legitimate claim of entitlement to a grievance procedure,” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), and the failure to follow grievance procedures does not give rise to a due process claim. See Flournoy v. Fairman, 897 F.Supp. 350, 354 (N.D. Ill. 1995) (jail grievance procedures did not create a substantive right enforceable under § 1983); Spencer v. Moore, 638 F.Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance system procedures do not deprive inmates of constitutional rights). “[N]o constitutional right was violated by the defendants' failure, if any, to process all of the grievances [plaintiff] submitted for consideration.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). In addition, “[t]he right to petition the government for redress of grievances . . . does not guarantee a favorable response, or indeed any response, from state officials. Moreover, the First Amendment's right to redress of grievances is satisfied by the availability of a judicial remedy.” Baltoski v. Pretorius, 291 F.Supp.2d 807, 811 (N.D. Ind. 2003); see also Ashann-Ra v. Virginia, 112 F.Supp.2d 559, 569 (W.D. Va. 2000) (failure to comply with state's grievance procedure is not actionable under § 1983 and does not compromise an inmate's right of access to the courts). Accordingly, Plaintiff has failed to state a claim in Count Three.
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 Cnty., 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 $6.73.
(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.