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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1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 DOUGLAS JOHN ZOLNIERZ, 9 Plaintiff, 10 vs. 11 JACK HARRIS, et al., 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 11-1182-PHX-RCB (MEA) ORDER 14 Plaintiff Douglas John Zolnierz, an inmate then-confined in the Arizona Department 15 of Corrections (ADC), filed a complaint in the Superior Court in Maricopa County, matter 16 No. CV2011-091252, alleging claims pursuant to 42 U.S.C. §§ 1983 and 1985, as well as 17 state law claims. (Doc. 1.) In an Order filed on June 28, 2011, the Court dismissed the 18 Complaint with leave to amend. (Doc. 10.) Shortly before that Order was filed, Defendants 19 Bernstein, Ditsworth, Donahoe, Donofrio, Gaines, Hauser, Jeanes, Kreamer, McMurdie, 20 Mundell Nelson, Newell, Ryan, Vandenberg, and Vatz filed a motion to dismiss and Plaintiff 21 filed a motion for extension of time to effect service and seeking a hearing. (Doc. 8, 9.) 22 Both of those motions were denied. (Doc. 11.) On July 27, 2011, Plaintiff filed a notice of 23 change of address, which reflects that he has been released from prison. (Doc. 12.) The 24 same day, Plaintiff filed a First Amended Complaint. (Doc. 13.) The following day, Plaintiff 25 filed a motion to stay proceedings or an extension of time to amend his Complaint, a motion 26 for the appointment of counsel, and a motion for reconsideration of the dismissal of his 27 Complaint. (Doc. 14-16.) The Court will deny Plaintiff’s motions and dismiss the First 28 Amended Complaint and this action as duplicative. 1 I. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief against 3 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 5 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 6 be granted, or that seek monetary relief from a defendant who is immune from such relief. 7 28 U.S.C. § 1915A(b)(1), (2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 10 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 12 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 25 Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards 26 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 27 94 (2007) (per curiam)). 28 -2- 1 If the Court determines that a pleading could be cured by the allegation of other facts, 2 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 3 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 4 should not, however, advise the litigant how to cure the defects. This type of advice “would 5 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 6 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was 7 required to inform a litigant of deficiencies). The Court will dismiss Plaintiff’s First 8 Amended Complaint without leave to amend because it is duplicative of another case 9 pending in federal court. 10 II. First Amended Complaint 11 Plaintiff ostensibly alleges four counts for denial of access to the courts and violation 12 of due process. Plaintiff seeks declaratory, injunctive, compensatory, and punitive relief. 13 Plaintiff sues more than thirty Defendants, including the State of Arizona; the Arizona 14 Attorney General, Tom Horne; Maricopa County; and the City of Phoenix. 15 In addition, Plaintiff sues the following current or former employees of Maricopa 16 County: former presiding judge of the Superior Court in Maricopa County Barbara Mundell; 17 former presiding criminal judge of the Superior Court in Maricopa County Gary Donahoe; 18 associate presiding judge in the Superior Court in Maricopa County Timothy Ryan; Superior 19 Court in Maricopa County Judges Paul McMurdie, the late Pendleton Gaines, Charles 20 Donofrio III, Joseph Kreamer, John Ditsworth, and Brian R. Hauser; Superior Court in 21 Maricopa County Commissioners Jerry Bernstein, E. Miles Nelson, Benjamin E. Vatz, Lisa 22 Ann Vandenberg, Barbara Spencer, and Julie Newell; Superior Court in Maricopa County 23 Court Clerk Michael Jeanes; Maricopa County Attorney Bill Montgomery; Deputy Maricopa 24 County Attorneys Mark Kaul, Sherry Leckrone, Michael W. Baker, and Adam Susser; 25 Maricopa County Public Defender James Haas; Deputy Maricopa County Public Defender 26 Elmer Parker; Deputy Maricopa County Legal Advocate Jabron (Jebbie) Whiteside; and 27 Stephen L. Duncan, court-appointed criminal defense attorneys; and Maricopa County Board 28 -3- 1 of Supervisors Fulton Brock, Don Stapley, Andrew W. Kunasek, Max W. Wilson, and Mary 2 Rose Wilcox (collectively “County Defendants”). 3 Finally, Plaintiff also sues several current or former City of Phoenix employees. 4 These include: Steve Harkin, a claim adjuster, and Jeff DeWitt, the Director of the City of 5 Phoenix Financial Department. Plaintiff also sues City Attorney Gary Verburg and 6 Assistant City Attorneys Christina Koehn1 and James J. Sampanies. Plaintiff also sues the 7 following current or former employees of the City of Phoenix Police Department: acting 8 Police Chief Joseph Yahnerd; Commanders Frank Sweeney, Dave Faulkner, Joseph Klima, 9 and Ann Hughes; and Detectives Korey Eggert and Todd Everett. 10 The primary thrust of Plaintiff’s First Amended Complaint in this case is that $2,084 11 to $2,884 was confiscated from him or from his apartment by Detectives Eggert and Everett 12 incident to an arrest and search, allegedly absent probable cause or a validly obtained 13 warrant, and never returned to him. 14 constitutional violations in connection with his criminal proceedings. Plaintiff also asserts various federal and state 15 Background 16 Plaintiff was arraigned before Commissioner Vandenberg and was charged with 17 aggravated assault, misconduct involving weapons, and a marijuana violation occurring on 18 January 12, 2009.2 19 State’s motion to take evidence.3 At that hearing, Assistant County Attorney Leckrone 20 represented the State and defense counsel Whiteside represented Plaintiff. On March 19, At a hearing on March 2, 2009, Commissioner Newell granted the 21 22 23 24 25 26 1 Koehn is representing Eggert and Everett in another action filed by Plaintiff, Zolnierz v. Arpaio, No. CV11-0146-PHX-GMS, discussed further below. 2 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). 3 27 See http://www.courtminutes.maricopa.gov/docs/Criminal/032009/m3604163.pdf (last visited Aug. 31, 2011). 28 -4- 1 2009, Commissioner Newell ordered a full Rule 11 competency evaluation of Plaintiff and 2 the case was transferred to the Rule 11 Commissioner.4 On April 30, 2009, Plaintiff was 3 found incompetent and his pro per motions for change of counsel were denied until he was 4 competent to make such requests and the Maricopa County Correctional Health Services was 5 ordered to review Plaintiff’s medications based on his actions in court.5 6 7 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 8 On August 13, 2009, Plaintiff was determined to have been restored to competency; 9 he was then represented by defense counsel Duncan.7 On September 25, 2009, Plaintiff 10 entered a guilty plea to misconduct involving weapons pursuant to a plea agreement.8 On 11 October 29, 2009, Plaintiff was sentenced by Judge Gaines to 2.5 years in prison with 12 presentence incarceration credit of 286 days and all weapons, weapon accessories, and 13 ammunition arising out of Phoenix Police Department Report #2009-90064107 were ordered 14 forfeited.9 On November 24, 2009, Duncan’s motion to withdraw was granted.10 Plaintiff 15 16 17 4 See http://www.courtminutes.maricopa.gov/docs/Criminal/042009/m3650374.pdf (last visited Aug. 31, 2011). 5 18 19 20 21 22 23 24 See http://www.courtminutes.maricopa.gov/docs/Criminal/052009/m3699065.pdf (last visited Aug. 31, 2011). 6 See http://www.courtminutes.maricopa.gov/docs/Lower%20Court/072009/ m3776778.pdf in case# LC2009-000405 (last visited Aug. 31, 2011). 7 See http://www.courtminutes.maricopa.gov/docs/Criminal/082009/m3845926.pdf (last visited Aug. 31, 2011). 8 See http://www.courtminutes.maricopa.gov/docs/Criminal/102009/m3908072.pdf (last visited Aug. 31, 2011). 9 25 26 See http://www.courtminutes.maricopa.gov/docs/Criminal/102009/m3949464.pdf (last visited Aug. 31, 2011). 10 27 See http://www.courtminutes.maricopa.gov/docs/Criminal/112009/m3986055.pdf (last visited Aug. 31, 2011). 28 -5- 1 subsequently sought relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure 2 and was appointed counsel.11 Deputy County Attorney Susser represented the State in those 3 proceedings.12 On August 19, 2011, the Superior Court denied Plaintiff’s petition for post- 4 conviction relief.13 5 II. Procedural History and the First Amended Complaint 6 Besides the present action, Plaintiff filed another civil rights complaint alleging the 7 same claims at issue in this case. See Zolnierz v. Arpaio, No. CV 11-0146-PHX-GMS (D. 8 Ariz.). This action was filed in federal court on January 21, 2011, months before the instant 9 case was removed to federal court. To the extent that Plaintiff states a claim against any 10 Defendant in this case, such claims are duplicative of those alleged in CV11-0146. The 11 Court notes that the Defendants have already been served and appeared in CV11-0146 and 12 that a scheduling conference is set in that case on September 30, 2011. 13 III. A Duplicative Action Must Be Dismissed 14 An in forma pauperis complaint that merely repeats pending or previously litigated 15 claims may be considered abusive and dismissed under 28 U.S.C. § 1915(e). Cato v. United 16 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); see also McWilliams v. State of Colorado, 17 121 F.3d 573, 574 (11th Cir. 1997) (repetitious action may be dismissed as frivolous or 18 malicious); Aziz v. Burrows, 976 F.2d 1158 (9th Cir. 1992) (“district courts may dismiss a 19 duplicative complaint raising issues directly related to issues in another pending action 20 brought by the same party”); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) 21 (repetitious litigation of virtually identical causes of action is subject to dismissal as 22 23 11 24 25 26 27 28 See http://www.courtminutes.maricopa.gov/docs/Criminal/122009/m4031288.pdf (last visited Aug. 31, 2011). 12 See http://www.courtminutes.maricopa.gov/docs/Criminal/082011/m4856767.pdf (last visited Aug. 31, 2011). 13 http://www.courtminutes.maricopa.gov/docs/Criminal/082011/m4860249.pdf -6- 1 malicious). Accordingly, the First Amended Complaint and this action will be dismissed as 2 duplicative of Zolnierz v. Arpaio, No. CV 11-0146-PHX-GMS (D. Ariz.). 3 IT IS ORDERED: 4 5 (1) The First Amended Complaint and this action are dismissed without prejudice. (Doc. 13.) 6 (2) Plaintiff’s motions are denied as moot. (Doc. 14-16.) 7 (3) The Clerk of Court must enter judgment accordingly. 8 (4) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. 9 § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this 10 11 decision would not be taken in good faith. DATED this 7th day of September, 2011. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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