Marshall v. McGregor et al

Filing 6

ORDER granting 2 Plaintiff's Motion/Application for Leave to Proceed in forma pauperis, Plaintiff must pay the $350.00 filing fee. The Complaint (Doc. 1) is dismissed for failure to state a claim, and the Clerk must enter judgment accor dingly. 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). 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 G Murray Snow on 1/4/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl Thomas Marshall,
Plaintiff,

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vs.

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Matthew McGregor, et al.,
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Defendants.
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No. CV 11-2288-PHX-GMS (MHB)
ORDER

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Plaintiff Carl Thomas Marshall, who is confined in the Maricopa County Fourth

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Avenue Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an

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Application to Proceed In Forma Pauperis. The Court will dismiss the action.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

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§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

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The Court will assess an initial partial filing fee of $6.33. The remainder of the fee will be

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collected monthly in payments of 20% of the previous month’s income each time the amount

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in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate

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Order requiring the appropriate government agency to collect and forward the fees according

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to the statutory formula.

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II.

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). Plaintiff’s Complaint will be dismissed for

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failure to state a claim, without leave to amend because the defects cannot be corrected.

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III.

Complaint

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Plaintiff names the following Defendants in the Complaint: Deputy County Attorney

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Matthew McGregor, Clerk of the Maricopa County Superior Court Michael K. Jeanes, and

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Detention Officers Burge and A-Squad Supervisor #7689.

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Plaintiff raises two grounds for relief. In Count I, Plaintiff claims his due process

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rights were violated when he received a supervening indictment while in custody at the

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Maricopa County Jail. Plaintiff claims this was a “violation of due process and U.S. Postal

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Service” and that the charges in the indictment are unfounded. Plaintiff further alleges that

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Defendant Burge delivered the indictment to him with his mail and that Defendant A-Squad

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Supervisor denied his grievance relating to the indictment.
In Count II, Plaintiff claims that the above incident constitutes a “violation of United

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States Postal Service.”
Plaintiff seeks money damages and to have his criminal charges dismissed.

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IV.

Failure to State a Claim

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Although vague, it appears Plaintiff believes the indictment is invalid because the

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charges made against him are unfounded and he was not properly served with indictment.

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To the extent that Plaintiff’s criminal proceedings are ongoing, the abstention doctrine set

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forth in Younger v. Harris, 401 U.S. 37 (1971), prevents a federal court in most

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circumstances from directly interfering with ongoing criminal proceedings in state court.

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Further, the Younger abstention doctrine bars requests for declaratory and monetary relief
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for constitutional injuries arising out of a plaintiff’s current state criminal prosecution. Mann

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v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) (per curiam). If relief is available to Plaintiff in

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connection with these proceedings, it lies in the state court.

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With respect to Plaintiff’s mail claims, § 1983 provides a cause of action against

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persons acting under color of state law who have violated rights guaranteed by the United

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States Constitution and federal law. 42 U.S.C. § 1983; see also Buckley v. City of Redding,

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66 F.3d 188, 190 (9th Cir. 1995). Plaintiff has failed to allege facts showing that Defendants

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Burge and A-Squad Supervisor violated his constitutional rights. The simple act of

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delivering mail from the courts does not constitute a constitutional violation.

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The Court will dismiss the Complaint and this action for failure to state a claim.

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

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(2)

As required by the accompanying Order to the appropriate government agency,

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Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $6.33.
(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.

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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 4th day of January, 2012.

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