Ross v. Arpaio

Filing 11

ORDER denying as moot Plaintiff's 7 Motion for Leave to Proceed in forma pauperis; Plaintiff's First Amended Complaint 8 and this action are dismissed for failure to state a claim; the Clerk must enter judgment accordingly; the Clerk mu st 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); 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 James A Teilborg on 3/16/11. (REW)

--ECV Ross v. Arpaio

Doc. 11

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Jamonz Majerrious Ross, Plaintiff, vs. Joseph M. Arpaio, et al., Defendants.

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No. CV 11-60-PHX-JAT (ECV) ORDER

On January 7, 2011, Plaintiff Jamonz Majerrious Ross, who is confined in the Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a January 27, 2011 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 March 4, 2011, Plaintiff filed a First Amended Complaint (Doc. 8) and second Application to Proceed In Forma Pauperis (Doc. 7). Because Plaintiff has already been granted in forma pauperis status, the Court will deny as moot the second Application to Proceed. The Court will also dismiss the First 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

Dockets.Justia.com

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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, 627 F.3d 338, 342 (9th Cir. 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. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). II. First Amended Complaint Plaintiff names the following Defendants in the First Amended Complaint: Maricopa County Superior Court Judge Sammuel Thumma, Superior Court Commissioner Lisa Roberts, and State's Attorney April Arlene Sponsel.

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Plaintiff raises one ground for relief in which he claims his Fifth and Fourteenth Amendment rights are being violated because he has not been given a preliminary hearing or timely indictment.1 Plaintiff seeks to have Defendants "brought to justice or fired." III. Failure to State a Claim 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, 356-357 (1978); 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). This immunity attaches even if the judge is accused of acting maliciously and corruptly, Peirson v. Ray, 386 U.S. 547, 553-54 (1967), or of making grave errors of law or procedure. Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988); see also Ammons v. Baldwin, 705 F.2d 1445, 1446-48 (11th Cir. 1983) (judge entitled to immunity from a claim that he verbally abused and humiliated plaintiff); Tanner v. Heise, 879 F.2d 572, 57778 (9th Cir. 1989). Regardless of the judge's status in the judicial hierarchy, a judge has absolute immunity for acts performed in the judge's official capacity. O'Neill v. City of Lake Oswego, 642 F.2d 367 (9th Cir. 1981) (pro tem municipal judge); Tanner, 879 F.2d at 577-78 (magistrate); Brewer v. Blackwell, 692 F.2d 387, 396 (11th Cir. 1982) (justice of the peace). Accordingly, Defendants Thumma and Roberts are absolutely immune from suit and must be dismissed. Similarly, prosecutors are absolutely immune from liability under § 1983 for their conduct in "initiating a prosecution and in presenting the State's case" insofar as that conduct is "intimately associated with the judicial phase of the criminal process." Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (citing Imbler v. Pachtman, 424 U.S. 409, 430
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This claim is entirely unrelated to the claims in Plaintiff's original Complaint which challenged the conditions of his confinement.
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(1976)); Burns v. Reed, 500 U.S. 478, 486 (1991); Ashelman, 793 F.2d at 1076. Plaintiff has therefore failed to state a claim against Defendant Sponsel. IV. Dismissal without Leave to Amend As no Defendants now remain, the Court will dismiss the Amended Complaint. 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); Klamath-Lake Pharmaceutical Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir.1983) (futile amendments should not be permitted). The Court finds that Plaintiff's claims cannot be cured by further amendment and will therefore dismiss the Amended Complaint without leave to amend. IT IS ORDERED: (1) Plaintiff's March 4, 2011 Application to Proceed In Forma Pauperis (Doc. 7)

is denied as moot. (2) Plaintiff's First Amended Complaint (Doc. 8) and this action are dismissed

for failure to state a claim, and the Clerk of Court must enter judgment accordingly. (3) 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). (4) 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 16th day of March, 2011.

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