Epstein v. Ryan et al

Filing 4

ORDER granting Plaintiff's 3 Motion for Leave to Proceed in forma pauperis; the Complaint 1 is dismissed for failure to state a claim and 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 G Murray Snow on 1/31/12.(REW)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marc Nathaniel Epstein,

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Plaintiff,
vs.

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Charles Ryan, et al.,
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Defendants.
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No. CV 12-0010-PHX-GMS (DKD)
ORDER

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On January 3, 2012, Plaintiff Marc Nathaniel Epstein, who was not imprisoned when

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he filed his lawsuit and is not currently confined, filed a pro se civil rights Complaint

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pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis

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(Doc. 3). The Court will dismiss the action.

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I.

Application to Proceed In Forma Pauperis

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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)(1). Plaintiff may proceed without prepayment of costs or fees or the necessity of

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giving security therefore.

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II.

Section 1915(e)(2), 28 U.S.C.

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When a plaintiff is permitted to proceed in forma pauperis, the Court must dismiss a

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complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or

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malicious, that fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(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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In his two-count Complaint, Plaintiff sues the following Defendants: Arizona

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Department of Corrections Director Charles Ryan, Gila County Attorney Daisy Flores, and

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Gila County Deputy County Attorney Patti Wortman.

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In Count One, Plaintiff alleges a violation of his due process rights, claiming that he

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was denied counsel during the signing of his plea agreement. He contends that Defendant

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Wortman presented a plea agreement to Plaintiff for signature, but Plaintiff’s criminal

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defense attorney was not present when Plaintiff received and signed the plea agreement.

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Plaintiff asserts that Defendants Flores and Wortman “bear responsibility for the abuse of due

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process.”

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In Count Two, Plaintiff contends that he was subjected to cruel and unusual

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punishment, in violation of the Eighth Amendment, because “[a]s a function of the previous

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denial of counsel for [the] plea agreement.” He alleges that after he signed the plea

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agreement, a superior court judge sentenced Plaintiff to 2.5 years’ imprisonment. Plaintiff

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contends that Defendant Ryan “bears technical responsibility for Eighth Amendment

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violations” because the sentence was “carried out under the authority [of Defendant] Ryan.”

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In his Request for Relief, Plaintiff seeks a “written and published apology” from

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Defendant Flores, a monetary settlement, and his court costs.

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IV.

Failure to State a Claim

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A.

Failure to Link Defendants with Injuries

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To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific

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injury as a result of specific conduct of a defendant and show an affirmative link between the

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injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377

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(1976). There is no respondeat superior liability under § 1983, and therefore, a defendant’s

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position as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights

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does not impose liability. Monell v. New York City Department of Social Services, 436 U.S.

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658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens
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and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.

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Plaintiff has not alleged that Defendant Flores or Defendant Ryan personally

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participated in a deprivation of Plaintiff’s constitutional rights, was aware of a deprivation

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and failed to act, or formed policies that resulted in Plaintiff’s injuries. Moreover, Plaintiff

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is incorrect that Defendant Ryan “bears technical responsibility” for incarcerating Plaintiff

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pursuant to a sentence imposed by a superior court judge.

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Thus, the Court will dismiss Plaintiff’s claims against Defendants Flores and Ryan.

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B.

Failure to State a Claim

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A prisoner’s claim for damages cannot be brought under 42 U.S.C. § 1983 if “a

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judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or

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sentence,” unless the prisoner demonstrates that the conviction or sentence has previously

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been reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-

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87 (1994). See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner’s

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§ 1983 action is barred (absent prior invalidation)–no matter the relief sought (damages or

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equitable relief), no matter the target of the prisoner’s suit (state conduct leading to

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conviction or internal prison proceedings)–if success in that action would necessarily

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demonstrate the invalidity of confinement or its duration.”). Plaintiff’s claims imply the

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invalidity of his conviction and sentence,and his claims are therefore barred by Heck.

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Moreover, prosecutors are absolutely immune from liability for damages under § 1983

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for their conduct in “initiating a prosecution and in presenting the State’s case” insofar as that

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conduct is “intimately associated with the judicial phase of the criminal process.” Buckley

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v. Fitzsimmons, 509 U.S. 259, 270 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-

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31 (1976)). Immunity extends to the plea bargaining process. Briley v. California, 564 F.2d

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849, 856 (9th Cir. 1977). Thus, Defendants Flores and Wortman are protected by absolute

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immunity.

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 3) is granted.
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(2)

The Complaint (Doc. 1) is dismissed for failure to state a claim and the Clerk

of Court must enter judgment accordingly.
(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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