Reyes v. Hughes et al

Filing 5

ORDER granting 2 Plaintiff's Application/Motion for Leave to Proceed in forma pauperis. 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 acco rdingly. 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 David G Campbell on 9/12/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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German Felipe Reyes-Reyes,
Plaintiff,

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vs.

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Ann Hughes, et al.,
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Defendants.
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No. CV 12-1684-PHX-DGC (MEA)
ORDER

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Plaintiff German Felipe Reyes-Reyes, 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 (Doc. 1)

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and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will grant the

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Application to Proceed and 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 $12.69. 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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In his three-count Complaint, Plaintiff sues the following Defendants: the City of

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Phoenix Police Department, Phoenix Police Officers Ann Hughes and David Walters, and

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Deputy County Attorney Jeffrey Kerr.

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In Count One, Plaintiff alleges a violation of the Fifth Amendment and the Arizona

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Constitution. He claims that Defendants Walters and Hughes seized money and a watch

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from Plaintiff when they arrested him, and did not return or inventory the items.

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In Count Two, Plaintiff alleges a violation of his Fourth Amendment rights and the

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Arizona Constitution. He claims he was subjected to false imprisonment or false arrest

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because Defendants Hughes and Walters made an investigatory stop without reasonable

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suspicion, arrested Plaintiff without probable cause, conducted an inventory search of his

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case, and assisted in his prosecution.

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In Count Three, Plaintiff asserts that his Fifth and Fourteenth Amendment rights were

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violated, claiming that a Brady violation occurred when exculpatory evidence was not timely

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disclosed. He also claims that when Defendant Kerr disclosed the evidence, it had been

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“altered and potentially fabricated to cover up the officers[’] neligence.” He contends that

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the evidence was “manipulated by either the Maricopa County Prosecutor[’]s Office or the

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Phoenix Police.” Plaintiff also contends that “the City ‘failed’ to train[,] supervise[,] and

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discipline Assistant District Attorneys and Phoenix Police Officers concerning their

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obligation to turn over Brady material in a timely fashion.” Finally, he contends that
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Defendants Kerr, Hughes, and Walters acted “with ‘actual malice’ in the element of

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‘malicious pro[s]ecution’ action, [b]ecause the[y] commenced the criminal proce[e]ding due

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to a wrong or improper motive.”

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In his Request for Relief, Plaintiff seeks monetary damages regarding Count One;

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dismissal of his conviction, release from custody, and monetary damages regarding Count

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Two; and reversal of his conviction, release from custody, and monetary damages regarding

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Count Three.

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IV.

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Failure to State a Claim
A. State Law Claims

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To state a claim under 42 U.S.C. § 1983, Plaintiff must establish that he was “deprived

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of a right secured by the Constitution or laws of the United States, and that the alleged

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deprivation was committed under color of state law.” American Mfrs. Mut. Ins. Co. v.

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Sullivan, 526 U.S. 40, 49-50 (1999). Section 1983 does not provide a cause of action for

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violations of state law or state constitutional rights. Ybarra v. Bastian, 647 F.2d 891, 892

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(9th Cir. 1981). Thus, asserting claims under the Arizona Constitution does not state a claim

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under § 1983. Therefore, the Court will dismiss Plaintiff’s claims in Counts One and Two

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regarding violations of the Arizona Constitution.

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B.

Count One

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The “Due Process Clause is simply not implicated by a negligent act of an official

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causing unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474

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U.S. 327, 328 (1986). Moreover, even unauthorized and intentional deprivations of property

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do not constitute a violation of procedural requirements of the Due Process Clause if a

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meaningful post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S.

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517, 533 (1984). Plaintiff has an adequate post-deprivation remedy. See Howland v. State,

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818 P.2d 1169, 1172-73 (Ariz. App. 1991) (the prisoner failed to state a due process claim

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where Arizona law provided an available state tort remedy to recover the value of his

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property). Thus, the Court will dismiss Count One.

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B.

Counts Two and Three

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Habeas proceedings are the proper mechanism for a prisoner seeking to challenge the

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legality or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A

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

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favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,”

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unless the prisoner demonstrates that the conviction or sentence has previously been

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reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87

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(1994). This bar also extends to claims for declaratory relief. See Edwards v. Balisok, 520

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U.S. 641, 648 (1997); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state

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prisoner’s § 1983 action is barred (absent prior invalidation)–no matter the relief sought

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

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

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demonstrate the invalidity of confinement or its duration.”); Smithart v. Towery, 79 F.3d

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951, 952 (9th Cir. 1996) (“There is no question that Heck bars [plaintiff’s] claims that

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defendants lacked probable cause to arrest him and brought unfounded charges against

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him.”).

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In State v. Reyes-Reyes, Maricopa County case CR2012-103491-001 DT, Plaintiff

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was sentenced after a jury found him guilty of two offenses—possession or use of dangerous

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drugs and misconduct involving weapons—that stemmed from the “investigatory stop” and

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arrest by Defendants Hughes and Walters.1 Plaintiff’s claims in Counts Two and Three

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imply the invalidity of his convictions. He has not demonstrated that his conviction has been

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reversed, expunged, declared invalid, or called into question by a federal court’s issuance of

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a writ of habeas corpus. Therefore, his claims are barred by Heck. Thus, the Court will

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dismiss Counts Two and Three.

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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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See http://www.courtminutes.maricopa.gov/docs/Criminal/092012/m5403690.pdf.
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(2)

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

Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $12.69.
(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 12th day of September, 2012.

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