Zolnierz v. Harris et al

Filing 17

ORDER, the First Amended Complaint 13 and this action are dismissed without prejudice; Plaintiff's motions are denied as moot 14 , 15 , 16 ; the Clerk must enter judgment accordingly; 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 9/7/11. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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DOUGLAS JOHN ZOLNIERZ,
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Plaintiff,
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vs.
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JACK HARRIS, et al.,
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Defendants.
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No. CV 11-1182-PHX-RCB (MEA)
ORDER

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Plaintiff Douglas John Zolnierz, an inmate then-confined in the Arizona Department

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of Corrections (ADC), filed a complaint in the Superior Court in Maricopa County, matter

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No. CV2011-091252, alleging claims pursuant to 42 U.S.C. §§ 1983 and 1985, as well as

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state law claims. (Doc. 1.) In an Order filed on June 28, 2011, the Court dismissed the

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Complaint with leave to amend. (Doc. 10.) Shortly before that Order was filed, Defendants

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Bernstein, Ditsworth, Donahoe, Donofrio, Gaines, Hauser, Jeanes, Kreamer, McMurdie,

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Mundell Nelson, Newell, Ryan, Vandenberg, and Vatz filed a motion to dismiss and Plaintiff

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filed a motion for extension of time to effect service and seeking a hearing. (Doc. 8, 9.)

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Both of those motions were denied. (Doc. 11.) On July 27, 2011, Plaintiff filed a notice of

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change of address, which reflects that he has been released from prison. (Doc. 12.) The

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same day, Plaintiff filed a First Amended Complaint. (Doc. 13.) The following day, Plaintiff

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filed a motion to stay proceedings or an extension of time to amend his Complaint, a motion

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for the appointment of counsel, and a motion for reconsideration of the dismissal of his

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Complaint. (Doc. 14-16.) The Court will deny Plaintiff’s motions and dismiss the First

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Amended Complaint and this action as duplicative.

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I.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other facts,

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a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the

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action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court

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should not, however, advise the litigant how to cure the defects. This type of advice “would

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undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225,

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231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was

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required to inform a litigant of deficiencies). The Court will dismiss Plaintiff’s First

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Amended Complaint without leave to amend because it is duplicative of another case

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pending in federal court.

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II.

First Amended Complaint

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Plaintiff ostensibly alleges four counts for denial of access to the courts and violation

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of due process. Plaintiff seeks declaratory, injunctive, compensatory, and punitive relief.

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Plaintiff sues more than thirty Defendants, including the State of Arizona; the Arizona

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Attorney General, Tom Horne; Maricopa County; and the City of Phoenix.

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In addition, Plaintiff sues the following current or former employees of Maricopa

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County: former presiding judge of the Superior Court in Maricopa County Barbara Mundell;

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former presiding criminal judge of the Superior Court in Maricopa County Gary Donahoe;

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associate presiding judge in the Superior Court in Maricopa County Timothy Ryan; Superior

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Court in Maricopa County Judges Paul McMurdie, the late Pendleton Gaines, Charles

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Donofrio III, Joseph Kreamer, John Ditsworth, and Brian R. Hauser; Superior Court in

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Maricopa County Commissioners Jerry Bernstein, E. Miles Nelson, Benjamin E. Vatz, Lisa

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Ann Vandenberg, Barbara Spencer, and Julie Newell; Superior Court in Maricopa County

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Court Clerk Michael Jeanes; Maricopa County Attorney Bill Montgomery; Deputy Maricopa

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County Attorneys Mark Kaul, Sherry Leckrone, Michael W. Baker, and Adam Susser;

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Maricopa County Public Defender James Haas; Deputy Maricopa County Public Defender

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Elmer Parker; Deputy Maricopa County Legal Advocate Jabron (Jebbie) Whiteside; and

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Stephen L. Duncan, court-appointed criminal defense attorneys; and Maricopa County Board

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of Supervisors Fulton Brock, Don Stapley, Andrew W. Kunasek, Max W. Wilson, and Mary

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Rose Wilcox (collectively “County Defendants”).

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Finally, Plaintiff also sues several current or former City of Phoenix employees.

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These include: Steve Harkin, a claim adjuster, and Jeff DeWitt, the Director of the City of

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Phoenix Financial Department. Plaintiff also sues City Attorney Gary Verburg and

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Assistant City Attorneys Christina Koehn1 and James J. Sampanies. Plaintiff also sues the

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following current or former employees of the City of Phoenix Police Department: acting

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Police Chief Joseph Yahnerd; Commanders Frank Sweeney, Dave Faulkner, Joseph Klima,

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and Ann Hughes; and Detectives Korey Eggert and Todd Everett.

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The primary thrust of Plaintiff’s First Amended Complaint in this case is that $2,084

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to $2,884 was confiscated from him or from his apartment by Detectives Eggert and Everett

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incident to an arrest and search, allegedly absent probable cause or a validly obtained

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warrant, and never returned to him.

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constitutional violations in connection with his criminal proceedings.

Plaintiff also asserts various federal and state

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Background

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Plaintiff was arraigned before Commissioner Vandenberg and was charged with

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aggravated assault, misconduct involving weapons, and a marijuana violation occurring on

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January 12, 2009.2

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State’s motion to take evidence.3 At that hearing, Assistant County Attorney Leckrone

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represented the State and defense counsel Whiteside represented Plaintiff. On March 19,

At a hearing on March 2, 2009, Commissioner Newell granted the

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Koehn is representing Eggert and Everett in another action filed by Plaintiff,
Zolnierz v. Arpaio, No. CV11-0146-PHX-GMS, discussed further below.
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See http://www.courtminutes.maricopa.gov/docs/Criminal/022009/m3579895.pdf
and http://www.courtminutes.maricopa.gov/docs/Criminal/042009/m3668204.pdf (last
visited Aug. 31, 2011).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/032009/m3604163.pdf
(last visited Aug. 31, 2011).

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2009, Commissioner Newell ordered a full Rule 11 competency evaluation of Plaintiff and

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the case was transferred to the Rule 11 Commissioner.4 On April 30, 2009, Plaintiff was

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found incompetent and his pro per motions for change of counsel were denied until he was

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competent to make such requests and the Maricopa County Correctional Health Services was

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ordered to review Plaintiff’s medications based on his actions in court.5

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On June 29, 2009, Judge Kreamer dismissed Plaintiff’s special action suit against
Detective Eggert for retaining cash allegedly found in Plaintiff’s apartment.6

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On August 13, 2009, Plaintiff was determined to have been restored to competency;

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he was then represented by defense counsel Duncan.7 On September 25, 2009, Plaintiff

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entered a guilty plea to misconduct involving weapons pursuant to a plea agreement.8 On

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October 29, 2009, Plaintiff was sentenced by Judge Gaines to 2.5 years in prison with

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presentence incarceration credit of 286 days and all weapons, weapon accessories, and

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ammunition arising out of Phoenix Police Department Report #2009-90064107 were ordered

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forfeited.9 On November 24, 2009, Duncan’s motion to withdraw was granted.10 Plaintiff

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See http://www.courtminutes.maricopa.gov/docs/Criminal/042009/m3650374.pdf
(last visited Aug. 31, 2011).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/052009/m3699065.pdf
(last visited Aug. 31, 2011).
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See http://www.courtminutes.maricopa.gov/docs/Lower%20Court/072009/
m3776778.pdf in case# LC2009-000405 (last visited Aug. 31, 2011).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/082009/m3845926.pdf
(last visited Aug. 31, 2011).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/102009/m3908072.pdf
(last visited Aug. 31, 2011).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/102009/m3949464.pdf
(last visited Aug. 31, 2011).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/112009/m3986055.pdf
(last visited Aug. 31, 2011).

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subsequently sought relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure

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and was appointed counsel.11 Deputy County Attorney Susser represented the State in those

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proceedings.12 On August 19, 2011, the Superior Court denied Plaintiff’s petition for post-

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conviction relief.13

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II.

Procedural History and the First Amended Complaint

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Besides the present action, Plaintiff filed another civil rights complaint alleging the

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same claims at issue in this case. See Zolnierz v. Arpaio, No. CV 11-0146-PHX-GMS (D.

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Ariz.). This action was filed in federal court on January 21, 2011, months before the instant

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case was removed to federal court. To the extent that Plaintiff states a claim against any

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Defendant in this case, such claims are duplicative of those alleged in CV11-0146. The

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Court notes that the Defendants have already been served and appeared in CV11-0146 and

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that a scheduling conference is set in that case on September 30, 2011.

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III.

A Duplicative Action Must Be Dismissed

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An in forma pauperis complaint that merely repeats pending or previously litigated

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claims may be considered abusive and dismissed under 28 U.S.C. § 1915(e). Cato v. United

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States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); see also McWilliams v. State of Colorado,

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121 F.3d 573, 574 (11th Cir. 1997) (repetitious action may be dismissed as frivolous or

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malicious); Aziz v. Burrows, 976 F.2d 1158 (9th Cir. 1992) (“district courts may dismiss a

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duplicative complaint raising issues directly related to issues in another pending action

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brought by the same party”); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)

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(repetitious litigation of virtually identical causes of action is subject to dismissal as

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See http://www.courtminutes.maricopa.gov/docs/Criminal/122009/m4031288.pdf
(last visited Aug. 31, 2011).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/082011/m4856767.pdf
(last visited Aug. 31, 2011).
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http://www.courtminutes.maricopa.gov/docs/Criminal/082011/m4860249.pdf
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malicious). Accordingly, the First Amended Complaint and this action will be dismissed as

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duplicative of Zolnierz v. Arpaio, No. CV 11-0146-PHX-GMS (D. Ariz.).

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IT IS ORDERED:

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(1) The First Amended Complaint and this action are dismissed without prejudice.
(Doc. 13.)

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(2) Plaintiff’s motions are denied as moot. (Doc. 14-16.)

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(3) The Clerk of Court must enter judgment accordingly.

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(4) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.
DATED this 7th day of September, 2011.

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