Ratliff v. Kaminsky et al

Filing 10

ORDER Plaintiff's First 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 dismiss al 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 David G Campbell on 1/31/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Karl David Ratliff,
Plaintiff,

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vs.

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Joel Kaminsky, et al.,
Defendants.

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No. CV 11-2202-PHX-DGC (MHB)
ORDER

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On November 9, 2011, Plaintiff Karl David Ratliff, who is confined in the Maricopa

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County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 and an Application to Proceed In Forma Pauperis. In a December 19, 2011 Order,

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the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff

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had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint

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that cured the deficiencies identified in the Order.

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On January 6, 2012, Plaintiff filed his First Amended Complaint (Doc. 9). The Court

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will dismiss the First Amended Complaint and this action. Plaintiff also filed, on December

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21, 2011, a letter inquiring as to the status of this case. The Court will construe the letter as

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a Motion for Status and will grant it to the extent that this Order informs Plaintiff of the

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status of this case.

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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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II.

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First Amended Complaint
In his seven-count Amended Complaint, Plaintiff sues Phoenix Police Officers Joel

Kaminsky, Jason Cvancara, Mathew Long, and John Modrick.

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In Count I, Plaintiff claims his Fourteenth Amendment rights were violated when

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Defendants “retaliated” against him by wrongfully arresting him for “misconduct with

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weapons, a probation violation, Marijuana, and two counts of aggravated assault.” Plaintiff

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claims that he did not match the description of the culprit described in a 911 call, that

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Defendants wrongfully charged him with possessing a gun that was 10 or 15 feet away from

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Plaintiff and five other people present at the time.

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In Count II, Plaintiff claims that Defendants made false statements in their police

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reports. In Count III, Plaintiff alleges that Defendants “fabricated” evidence when they

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charged him with weapons misconduct but the gun was not Plaintiff’s and did not have

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Plaintiff’s fingerprints on it.

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In Count IV, Plaintiff claims that Defendants’ actions constitute harassment. In Count

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V, Plaintiff claims that Defendants threatened his safety when they wrongfully arrested him.

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In Count VI, Plaintiff claims that Defendants violated his Fourth Amendment rights when

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they stopped him without probable cause. In Count VII, Plaintiff claims that Defendants

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failed to interview witnesses.

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Plaintiff seeks “dismissal of all charges or $750,000.00.”
III.

Failure to State a Claim

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A.

Younger Abstention

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To the extent Plaintiff seeks dismissal of the criminal charges against him, the

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abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents a federal

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court in most circumstances from directly interfering with ongoing criminal proceedings in

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state court. The Younger abstention doctrine applies while the case works its way through

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the state appellate process. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,

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491 U.S. 350, 369 (1989) (“[f]or Younger purposes, the State’s trial-and-appeals process is

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treated as a unitary system”); Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) (“Virtually

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all of the evils at which Younger is directed would inhere in federal intervention prior to

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completion of state appellate proceedings, just as surely as they would if such intervention

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occurred at or before trial.”).
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If relief is available to Plaintiff in connection with these proceedings, it lies in the state

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court. If Plaintiff is convicted after the conclusion his state court criminal proceedings,

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Plaintiff may seek relief in federal court for any denial of his constitutional rights through

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a petition for writ of habeas corpus. However, Plaintiff should note that federal courts will

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not entertain a habeas petition until Plaintiff has exhausted his state court remedies. Rose v.

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Lundy, 455 U.S. 509 (1982). Any claim for damages will be barred by Heck v. Humphrey,

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512 U.S. 477 (1994), unless Plaintiff can demonstrate his conviction has previously been

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reversed or otherwise invalidated, because such a judgment in favor of Plaintiff on these

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issues would necessarily imply the invalidity of his conviction or sentence.

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B.

Wrongful Arrest-Counts I, IV, V, and VI

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To the extent that Plaintiff seeks money damages, he has failed to state a claim. In

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Counts I, IV, V, and VI, Plaintiff claims that Defendants wrongfully stopped and arrested

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him for the purpose of retaliation and harassment. To establish that he was wrongly arrested

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in violation of the Fourth Amendment, Plaintiff must show that Defendants made the arrest

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without probable cause. Dubner v. City & County of S.F., 266 F.3d 959, 964 (9th Cir. 2001).

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Probable cause exists when, taking together the totality of circumstances known to the

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arresting officer, a prudent person would conclude that there was a fair probability that the

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arrested person committed a crime. Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir.

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1994). If a Defendant had probable cause, Plaintiff’s arrest was lawful regardless of the

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officer’s subjective motivation. Tatum v. City & County of S.F., 441 F.3d 1090, 1094 (9th

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Cir. 2006).

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In this case, Plaintiff has alleged facts showing that the arresting officers responded

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to a 911 call; that when they arrived on the scene, Plaintiff was part of a group of people

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standing near a weapon on the ground; and that there were conflicting witness reports as to

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whom the gun belonged. Although Plaintiff asserts he is innocent based on later discovered

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evidence such as the lack of his fingerprints on the gun, Plaintiff has not presented facts

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showing that, at the time of the arrest, the officers were without probable cause to arrest him.

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Moreover, Plaintiff makes no allegations of probable cause regarding the marijuana charges.
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See Edgerly v. City & County of San Francisco, 495 F.3d 645, 651-52 (9th Cir. 2007)

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(“Probable cause supports an arrest so long as the arresting officers had probable cause to

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arrest the suspect for any criminal offense, regardless of their stated reason for the arrest.”).

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Accordingly, Plaintiff has failed to state a claim for false arrest or imprisonment and

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the Court will dismiss Counts I, IV, V, and VI for failure to state a claim.

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C.

Evidence Claims-Counts II, III, and VII

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Plaintiff claims that Defendants made false statements in their police reports (Count

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II), fabricated evidence (Count III), and failed to collect witness statements (Count VII).

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Plaintiff claims that Defendants fabricated evidence by making untrue statements in their

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reports and that the statements were, in some instances, in direct conflict with witnesses’

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statements. “[T]he mere filing of . . . false police reports, by themselves and without more,

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did not create of right of action in damages under 42 U.S.C. § 1983.” Landrigan v. City of

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Warwick, 628 F.2d 736, 744-45 (1st Cir. 1980); Bronner v. San Francisco Superior Court,

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2010 WL 2650500 (N.D. Cal. July 1, 2010) (“numerous courts have held that the fact that

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a false, incomplete or fraudulent police report has been filed is insufficient to state a § 1983

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claim.”); J.K.G. v. County of San Diego, 2011 WL 5218253 *6 (S.D. Cal. November 2,

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2011) (“the filing of the false police report, even where it resulted in charges being filed, did

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not constitute a civil rights violation.”). See also Paskaly v. Seale, 506 F.2d 1209, 1212 (9th

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Cir. 1974) (“The tort of malicious prosecution, without more, does not constitute a civil

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rights violation.”); Curry v. Ragan, 257 F.2d 449, 450 (5th Cir. 1958) (“Neither the

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Fourteenth Amendment nor the Civil Rights Acts purport to secure a person against

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unfounded or even malicious claims or suits in the state courts.”). Accordingly, Plaintiff’s

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allegations in Counts II and III, that Defendants made false statements in their police reports,

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fail to state a claim for relief.

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Further, “a police officer’s failure to preserve or collect potential exculpatory evidence

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does not violate the Due Process clause unless the officer acted in bad faith.” Cunningham

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v. City of Wenatchee, 345 F.3d 802, 813 (9th Cir. 2003). A showing of bad faith “turn[s] on

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the police’s knowledge of the exculpatory value of the evidence at the time it was lost or
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destroyed.” Id. (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). The Court notes

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that while Plaintiff claims Defendants refused to take “any witness statements,” Plaintiff also

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claims that “there are multiple witnesses in the report.” (Compl. at 4). Accordingly, Plaintiff

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has failed to state a claim in Count VII.

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IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his First Amended Complaint, the Court

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will dismiss the First Amended Complaint. “Leave to amend need not be given if a

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complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc.,

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885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). The

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Court will therefore dismiss Plaintiff’s First Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s First 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.

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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.

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DATED this 31st day of January, 2012.

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