Jackson v. Arizona, State of et al

Filing 8

ORDER Defendant State of Arizona's motion to dismiss (Doc. 3 ) is granted. Plaintiff's motion for partial summary judgment (Doc. 5 ) is denied. On or before November 28, 2012, Plaintiff shall file a memorandum showing why this case should not be dismissed for failure to comply with Rule 4(m). If Plaintiff fails to file a memorandum by that date, the Court will dismiss this case without further notice. Signed by Judge David G Campbell on 11/9/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-12-01233-PHX-DGC

Anthony Dean Jackson

ORDER

Plaintiff,

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v.

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State of Arizona, et al.,
Defendants.

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Plaintiff Anthony Jackson has asserted claims under 42 U.S.C. § 1983 against

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Defendants State of Arizona and Maricopa County, and has filed a motion for partial

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summary judgment.

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complaint or the motion for partial summary judgment. The State has filed a motion to

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dismiss under Rule 12(b)(6), and Plaintiff has responded. Docs. 3, 4.

Docs. 1, 5.

The County has not been served with either the

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A.

Claim Against the State.

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Section 1983 allows plaintiffs to recover against “[e]very person” who deprives

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them of their civil rights. 42 U.S.C. § 1983. In Will v. Michigan Department of State

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Police, 491 U.S. 58 (1989), the Supreme Court held that neither a State nor its officials

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acting in their official capacities are “persons” under § 1983. As a result, the State is not

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subject to Plaintiff’s § 1983 claim and its motion to dismiss is will be granted.

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B.

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Because the County has not been served with the complaint or Plaintiff’s motion

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Claim Against the County.

for partial summary judgment, the motion will be denied.

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Plaintiff has not provided proof that he has served the County as required by

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Rule 4(l) of the Federal Rules of Civil Procedure. The 120 days allowed for service by

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Rule 4(m) have elapsed. Plaintiff has not sought an extension of the time for service. On

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or before November 28, 2012, Plaintiff shall file a memorandum showing why this case

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should not be dismissed for failure to serve the County within the time required by Rule

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4(m).

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The Court also notes that Plaintiff’s complaint asks the Court to invalidate his

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State-court conviction for kidnapping and sexual abuse. Doc. 1. Plaintiff asserts that his

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constitutional rights were violated during his trial, and seeks relief under § 1983. Id. A

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claim cannot be brought under § 1983 if “a judgment in favor of the plaintiff would

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necessarily imply the invalidity of his conviction or sentence,” unless Plaintiff

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demonstrates that the conviction or sentence has previously been reversed, expunged, or

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otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). This bar

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extends to claims for declaratory relief, such as Plaintiff’s claim in this case for a nolle

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prosequi declaration. Doc. 1 at 12; see Edwards v. Balisok, 520 U.S. 641, 648 (1997);

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see also Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005) (“[A] state prisoner’s § 1983

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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 does not allege that

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his conviction has been reversed, expunged, or otherwise invalidated, and it would this

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appear that he cannot assert a claim against the County under § 1983.

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IT IS ORDERED:

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1.

Defendant State of Arizona’s motion to dismiss (Doc. 3) is granted.

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2.

Plaintiff’s motion for partial summary judgment (Doc. 5) is denied.

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3.

On or before November 28, 2012, Plaintiff shall file a memorandum

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showing why this case should not be dismissed for failure to comply with Rule 4(m). If

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Plaintiff fails to file a memorandum by that date, the Court will dismiss this case without
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further notice.
Dated this 9th day of November, 2012.

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