Taylor v. Alexander et al

Filing 11

ORDER Plaintiff's Application to Proceed In Forma Pauperis (Doc. 7 ) is denied. Plaintiff's Motion (Doc. 5 ) is denied. The Complaint (Doc. 1 ) is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1), and the C lerk of Court 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 Senior Judge Robert C Broomfield on 10/23/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeffrey Alan Taylor,

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No. CV 13-0983-PHX-RCB (JFM)
Plaintiff,

vs.

ORDER

Beth Anne Alexander, et al.,
Defendants.

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On May 9, 2013, Plaintiff Jeffrey Alan Taylor, who is confined in the Fourth

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Avenue Jail in Phoenix, Arizona, filed an unsigned pro se civil rights Complaint pursuant

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

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Pauperis. In an Order dated July 25, 2013, the Court denied the deficient Application to

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Proceed and gave Plaintiff 30 days to pay the filing and administrative fees or file a

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complete Application to Proceed In Forma Pauperis and to submit a completed and

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signed Certificate certifying that Plaintiff’s signature on the Certificate shall serve as an

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original signature on his Complaint.

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On August 21, 2013, Plaintiff filed a document, which the Court docketed as a

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Motion (Doc. 5), requesting that the Court, among other things, issue an order to “have In

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Forma Pauperis form(s) tendered by the Inmate “Trust” Account personnel *Only* . . .

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and not by or interferences by I.L.S. Staff/Personnel, without any form of retaliations.”

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On August 26, 2013, Plaintiff filed an incomplete Application to Proceed In Forma

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Pauperis (Doc. 7) and a signed certificate certifying that Plaintiff’s signature on the

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Certificate serves as an original signature on his Complaint. The Court will deny the

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Motion and the deficient Application to Proceed and will dismiss the Complaint and this

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action for failing to state a claim.

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I.

Payment of Filing Fee

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When bringing an action, a prisoner must either pay the $350.00 filing fee and a

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$50.00 administrative fee in a lump sum or, if granted the privilege of proceeding in

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forma pauperis, pay the $350.00 filing fee1 incrementally as set forth in 28 U.S.C.

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§ 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of

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indigence and a certified copy of the inmate’s trust account statement for the six months

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preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit

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statements from each institution where the inmate was confined during the six-month

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period. Id. To assist prisoners in meeting these requirements, the Court requires use of a

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form application. LRCiv 3.4.

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If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an

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initial partial filing fee of 20% of either the average monthly deposits or the average

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monthly balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An

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initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4).

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The balance of the $ 350.00 filing fee will be collected in monthly payments of 20% of

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the preceding month’s income credited to an inmate’s account, each time the amount in

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the account exceeds $10.00. 28 U.S.C. § 1915(b)(2).

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II.

Application Fails to Comply With Statute

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Plaintiff has used the court-approved form and submitted a trust account

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statement, but the “Certificate of Correctional Official as to Status of Applicant’s Trust

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Effective May 1, 2013, the Clerks of Court for the United States District Courts
are required to collect a $50.00 administrative fee for the filing of a civil action, suit, or
proceeding in a district court. See Judicial Conference Schedule of Fees, District Court
Miscellaneous Fee Schedule &14 (effective May 1, 2013), foll. 28 U.S.C. § 1914.
However, the administrative fee “does not apply to applications for a writ of habeas
corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915.” Id.
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Account” section is not completed. In light of this deficiency, the Court will deny the

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Application to Proceed.

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III.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 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

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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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

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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But as the United States Court of Appeals for the Ninth Circuit has instructed,

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courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other

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facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

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of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The

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Court should not, however, advise the litigant how to cure the defects. This type of

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advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v.

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Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to

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decide whether the court was required to inform a litigant of deficiencies). Plaintiff’s

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Complaint will be dismissed for failure to state a claim, without leave to amend, because

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the defects cannot be corrected.

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IV.

Complaint

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Plaintiff’s two-count Complaint alleges violations of the Fifth, Sixth, Eighth and

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Fourteenth Amendments. He sues public defender Beth Anne Alexander and Maricopa

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County prosecutor Margaret (Peggy) Wu. Plaintiff seeks release from jail, dismissal of

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the indictment against him, expungement of his record, and compensatory and punitive

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damages.

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In Count I, Plaintiff alleges that his former public defender, Alexander, failed to

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provide him with copies of statutes related to a September 4, 2012 indictment against

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him, urged him to plead guilty to six felony charges, failed to file any motions on his

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behalf, failed to adequately review the indictment against him, and conspired with the

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prosecutor to convict him.

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In Count II, Plaintiff alleges that Wu used “dissembling means” to obtain an

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indictment against him, is using “fall[a]cious and dissembling police and unconfirmed

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medical reports” to prosecute him, and is conspiring with Alexander against him.

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V.

Failure to State a Claim

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct about which he complains was committed by a person acting under the color of

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state law and (2) the conduct deprived him of a federal constitutional or statutory right.

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Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also allege that

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he suffered a specific injury as a result of the conduct of a particular defendant and he

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must allege an affirmative link between the injury and the conduct of that defendant.

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Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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A.

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A prerequisite for any relief under § 1983 is allegations to support that a defendant

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acted under the color of state law. The “under color of state law” component is the

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equivalent of the “state action” requirement under the Constitution. Lugar v. Edmondson

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Oil Co, Inc., 457 U.S. 922, 928 (1982); Jensen v. Lane County, 222 F.3d 570, 574 (9th

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Cir. 2000) (citing West v. Atkins, 487 U.S. 42, 49 (1988); Rendell-Baker v. Kohn, 457

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U.S. 830, 838 (1982)). “Acting under color of state law is ‘a jurisdictional requisite for a

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§ 1983 action.’” Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (quoting West,

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487 U.S. at 46). Whether an attorney representing a criminal defendant is privately

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retained, a public defender, or court-appointed counsel, he or she does not act under color

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of state law. See Polk County v. Dodson, 454 U.S. 312, 317-18 (1981); Miranda v. Clark

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County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) (en banc). For this reason, Plaintiff

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fails to state a claim against Alexander and she and Count I will be dismissed.

Defendant Alexander

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B.

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Plaintiff sues Maricopa County prosecutor Wu for acts taken in prosecuting him.

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A prosecutor is absolutely immune from liability under § 1983 for conduct in “‘initiating

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a prosecution and in presenting the State’s case’” insofar as that conduct is “‘intimately

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associated with the judicial phase of the criminal process.’” Buckley v. Fitzsimmons, 509

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U.S. 259, 270 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also

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Burns v. Reed, 500 U.S. 478, 486 (1991); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th

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Cir. 1986). That is, “[a] prosecutor is protected by absolute immunity from liability for

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damages under § 1983 ‘when performing the traditional functions of an advocate.’”

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Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005) (quoting Kalina v. Fletcher,

Defendant Wu

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522 U.S. 118, 131 (1997)). Absolute immunity extends to a prosecutor “eliciting false or

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defamatory testimony from witnesses” or for making false or defamatory statements

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during, and related to judicial proceedings. Buckley, 509 U.S. at 270 (citations omitted).

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“However, ‘the actions of a prosecutor are not absolutely immune merely because they

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are performed by a prosecutor.’” Genzler, 410 F.3d at 636 (quoting Buckley, 509 U.S. at

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273). Rather, prosecutorial immunity depends on “‘the nature of the function performed,

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not the identity of the actor who performed it.’” Id. (quoting Kalina, 522 U.S. at 127). A

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prosecutor is only entitled to qualified immunity, rather than absolute immunity, when

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she performs administrative or investigative functions. Id.

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Plaintiff’s allegations against Wu concern her prosecution of Plaintiff.

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conduct is intimately associated with the judicial phase of criminal proceedings against

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Plaintiff and is entitled to absolute immunity. As discussed herein, such allegations are

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not a basis for liability under § 1983. For this reason, Plaintiff fails to state a claim

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against Wu and she and Count II will be dismissed.

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Because Plaintiff has failed to name a proper Defendant, his Complaint and this
action will be dismissed.

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C.

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In his request for relief, Plaintiff seeks release from jail, dismissal of the

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indictment against him, and expungement of his record. The abstention doctrine set forth

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

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from directly interfering with ongoing criminal proceedings in state court. The Younger

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abstention doctrine also bars requests for declaratory and monetary relief for

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constitutional injuries arising out of a plaintiff’s ongoing state criminal prosecution.

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Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986). In addition, the Younger abstention

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doctrine applies while a case works its way through the state appellate process, if a

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prisoner is convicted. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,

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491 U.S. 350, 369 (1989). Only in limited, extraordinary circumstances will the Younger

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doctrine not bar federal interference with ongoing (non-final) state criminal proceedings.

Abstention

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Such circumstances include when a prisoner alleges that he is being subjected to double

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jeopardy. See Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992). Speedy trial

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claims may also be reviewed if a detainee is seeking to compel the state to bring him to

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trial, rather than seeking dismissal of the charges, and the detainee has exhausted all of

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his state court remedies. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S.

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484, 489-90 (1973); see In re Justices of Superior Court Dep’t of Mass. Trial Court, 218

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F.3d 11, 18 & n.5 (1st Cir. 2000). The failure to state a claim includes a claim to which

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the abstention doctrine applies. See Yahoo! Inc. v. La Ligue Contre Le Racisme et

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L’Antisemitisme, 433 F.3d 1199, 1224 (9th Cir. 2006); Smith v. Central Ariz. Water

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Conservation Dist., 418 F.3d 1028, 1030 (9th Cir. 2005).

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Plaintiff does not allege that he has been charged or held in violation of the

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Double Jeopardy or Speedy Trial Clauses. Therefore, disruption by a federal court is not

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required. For the additional reason that Plaintiff fails to state a claim pursuant to the

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abstention doctrine, Plaintiff’s claims and this action will be dismissed.

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 7) is denied.

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(2)

Plaintiff’s Motion (Doc. 5) is denied.

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(3)

The Complaint (Doc. 1) is dismissed for failure to state a claim pursuant to

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28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment accordingly.

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....

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of

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this decision would not be taken in good faith.

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(4)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

DATED this 23rd day of October, 2013.

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