Toles v. Sanford et al

Filing 8

ORDER granting 6 Plaintiff's Motion for Leave to Proceed in forma pauperis; Plaintiff must pay the $350.00 filing fee. The Complaint is dismissed for failure to state a claim and the Clerk shall enter judgment. The Clerk must make an entr y 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). 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 Robert C Broomfield on 10/22/10.(LSP)

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--LOA Toles v. Sanford et al Doc. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO MDR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Jamond A. Toles, Plaintiff, vs. Kellie M. Sanford, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-2122-PHX-RCB (LOA) ORDER On October 4, 2010, Plaintiff Jamond A. Toles, who is confined in the Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 1983 (Doc. 1) and a deficient Application to Proceed In Forma Pauperis. In an October 12, 2010 Order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to either pay the filing fee or file a complete Application to Proceed In Forma Pauperis. On October 20, 2010, Plaintiff filed a second Application to Proceed In Forma Pauperis (Doc. 6). The Court will grant the second Application to Proceed and will dismiss this action. I. Second Application to Proceed In Forma Pauperis and Filing Fee Plaintiff's second Application to Proceed In Forma Pauperis will be granted. 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 $15.33. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income each Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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-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 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's Complaint will be dismissed for failure to state a claim, without leave to amend because the defects cannot be corrected. III. Complaint In his two-count Complaint, Plaintiff sues the following Defendants: attorney Kellie M. Sanford and the Maricopa County Superior Court. In Count One, Plaintiff alleges a violation of the Eighth Amendment prohibition against cruel and unusual punishment because he is being held in jail "by Maricopa County for crimes [he] didn[']t commit" and because his attorney "is working with the County against [him]." In Count Two, Plaintiff asserts a violation of article II, section 4 of the Arizona Constitution. He claims that he is not being given the ability to "fully be represented by counsel who[se] interest is [his] best" and he is being deprived of life and liberty because he is being held in jail. In his Request for Relief, Plaintiff seeks monetary damages and for Maricopa County and the Maricopa County Sheriff to be "reprimanded." IV. Failure to State a Claim A. Count One 1. Defendant Sanford Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the United States Constitution and federal law. 42 U.S.C. 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). A -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 public defender representing a criminal defendant does not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). Therefore, the Court will dismiss Plaintiff's claim against Defendant Sanford. 2. Defendant Maricopa County Superior Court To state a valid claim under 1983, plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Plaintiff has made no allegations against Defendant Maricopa County Superior Court. Claims under 1983 may be directed at "bodies politic and corporate." Monell v. New York City Dept. of Social Services, 436 U.S. 686, 688-89 (1978). "[A] municipality can be sued under 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993). "A municipality may be liable for actions resulting in violations of constitutional rights only when the conduct of its official or agent is executed pursuant to a government policy or custom." Lewis v. Sacramento County, 98 F.3d 434, 446 (9th Cir. 1996), rev'd on other grounds, 523 U.S. 833 (1998). Plaintiff does not allege that any Defendant acted in conformance with a policy or custom of the Maricopa County Superior Court in violating Plaintiff's constitutional rights. Even if Plaintiff had sued an individual Maricopa County Superior Court Judge, 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, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); 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). Therefore, the Court will dismiss Defendant Maricopa County Superior Court. .... -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Count Two Section 1983 does not provide a cause of action for violations of state law or state constitutional rights. Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981). In order to state a claim under 1983, Plaintiff must allege a cognizable federal constitutional claim. In Count Two, Plaintiff has only asserted a claim under the Arizona Constitution. This is insufficient and, therefore, the Court will dismiss Count Two. IT IS ORDERED: (1) granted. (2) As required by the accompanying Order to the appropriate government agency, Plaintiff's second Application to Proceed In Forma Pauperis (Doc. 6) is Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $15.33. (3) The Complaint (Doc. 1) is dismissed for failure to state a claim pursuant to 28 U.S.C. 1915A(b)(1), and the Clerk of Court must enter judgment accordingly. (4) 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). (5) 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 22nd day of October, 2010. -5-

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