Shivers v. Phoenix Police Department, City of, et al

Filing 10

ORDER - Plaintiff's Second Amended Complaint, doc. 9, and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. The Clerk of Court must make an entry on the docket stating that the dismis sal for failure to state a claim may count as a strike under 28 U.S.C. § 1915(g). The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge G Murray Snow on 9/8/10. (LAD)

--JRI Shivers v. Phoenix Police Department, City of, et al

Doc. 10

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WO NOT FOR PUBLICATION

SC

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Corey Demar Shivers, Plaintiff, vs. April Arlene Sponsel, et al., Defendants.

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No. CV 10-0796-PHX-GMS (JRI) ORDER

On April 9, 2010, Plaintiff Corey Demar Shivers, who is confined in the Fourth Avenue Jail in Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis.1 In a May 20, 2010 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order. On June 3, 2010, Plaintiff filed his First Amended Complaint. In a July 14, 2010 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order.

Plaintiff has filed three other civil rights cases in federal court, Shivers v. Phoenix Police Dep't, No. CV09-1243-PHX-GMS (JRI); Shivers v. Phoenix Police Dep't, No. CV092285-PHX-GMS (JRI); and Shivers v. Phoenix Police Dep't, No. CV10-1175-PHX-GMS (JRI). In each, he raises claims concerning state charges and the prosecution thereof.

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Dockets.Justia.com

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On August 17, 2010, Plaintiff filed a Second Amended Complaint. (Doc. 9.) The Court will dismiss the Second Amended Complaint and this action. I. 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-defendantunlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (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 1950. 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 1951. 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, No. 07-17265, 2010 WL 2947323, at *3 (9th Cir. Jul. 29, 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.
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Pardus, 551 U.S. 89, 94 (2007) (per curiam)). II. Second Amended Complaint In his three-count Second Amended Complaint, Plaintiff sues the following Defendants: April Arlene Sponsel, City of Phoenix, Tyler Kamp, David Snow, and Maricopa County. In each Count, Plaintiff alleges only violations of the state constitution. III. Failure to State a Claim As Plaintiff has twice previously been informed in this case: To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). (Doc. 5 at 3-4; 8 at 3.) Further, in dismissing the First Amended Complaint, the Court declined to extend supplemental jurisdiction over state law claims where Plaintiff had failed to state any federal constitutional claim. (Doc. 8 at 7.) In the Second Amended Complaint, Plaintiff fails to allege any violation of his federal constitutional rights. Instead, he only alleges violations of state constitutional rights. Plaintiff thus fails to state a claim under 42 U.S.C. § 1983. IV. Dismissal without Leave to Amend Because Plaintiff has failed to state a claim in his Second Amended Complaint, the Court will dismiss his Second Amended Complaint. "Leave to amend need not be given if a complaint, as amended, is subject to dismissal." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court's discretion to deny leave to amend is particularly broad where Plaintiff has previously been permitted to amend his complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated failure to cure deficiencies is one of the factors to be considered in deciding whether justice requires granting leave to amend. Moore, 885 F.2d at 538. Plaintiff has made three efforts at crafting a viable complaint and appears unable to
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do so despite specific instructions from the Court. The Court finds that further opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss Plaintiff's Second Amended Complaint without leave to amend. IT IS ORDERED: (1) Plaintiff's Second Amended Complaint, doc. 9, and this action are dismissed

for failure to state a claim, and the Clerk of Court must enter judgment accordingly. (2) The Clerk of Court must make an entry on the docket stating that the dismissal

for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). (3) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. DATED this 8th day of September, 2010.

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