Moore v. Hamas et al

Filing 5

ORDER granting 2 Plaintiff's Application/Motion for Leave to Proceed In Forma Pauperis, Plaintiff must pay the $350.00 filing fee. The Complaint (Doc. 1 ) is dismissed and the Clerk shall enter judgment. The Clerk 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 10/15/13.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Deeandre Moore,

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No. CV-13-1418-PHX-GMS (MHB)
Plaintiff,

vs.

ORDER

Brent Hamas, et al.,

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Defendants.

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Plaintiff Deeandre Moore, who is confined in the Maricopa County Fourth Avenue

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Jail, has filed a pro se civil rights Complaint pursuant to Bivens v. Six Unknown Federal

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Narcotics Agents, 403 U.S. 388 (1971) (Doc. 1). Because Plaintiff is a state detainee

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suing state officers, the Court will treat the action as filed pursuant to 42 U.S.C. § 1983.

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See Antoine v. Byers & Anderson, Inc., 950 F.2d 1471, 1473 (9th Cir. 1991) (court may

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ignore plaintiff’s initial mischaracterization of action against federal agents as section

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1983 action), rev=d on other grounds, 508 U.S. 429 (1993).

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Plaintiff has also filed an Application to Proceed In Forma Pauperis (Doc. 2).

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The Court will dismiss this 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 $16.95. The remainder of the fee will

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

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

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separate Order requiring the appropriate government agency to collect and forward the

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fees according 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

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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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III.

Complaint

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Plaintiff names the following Defendants in the Complaint: Assistant Maricopa

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County Prosecutor Brent Hamas, Maryvale Police Officer Bradley, and Manager of

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P.L.S. Check Cashers Martisa Quatarro.

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Plaintiff raises three claims for relief.

In Count One, Plaintiff alleges that

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Defendant Hamas violated his Fourteenth Amendment rights when Defendant Hamas

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“neglected false issues of material facts in a court of law.” Plaintiff claims that he was

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arrested without probable cause and that the arresting officers searched him twice before

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advising him that he was under arrest.

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In Count Two, Plaintiff claims his Fourth, Fifth, Sixth, and Fourteenth

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Amendment rights were violated when Defendant Bradley and Maryvale Police Officer

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Flores “filed a false sworn certification of probable cause for arrest in order to cover up

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the false report of a forgery in progress made November 4, 2012.” Plaintiff claims the

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officers “did not ask [him] for identification, officers search[ed] [him] twice without

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informing [him] what the cause for arrest was. Officers found a small baggy on the

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ground and wrote in their certification statement that it was allegedly [Plaintiff’s].”

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Plaintiff claims that the officers stated in their report that Plaintiff introduced a forged

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document, but that he was not arrested on forgery charges.

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In Count Three, Plaintiff claims Defendant Quantarro “neglected to [intervene]

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when the P.L.S. shift supervisor name[d] Karla filed a false report to Maryvale dispatch

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police on November 4, 2012.”

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Plaintiff seeks money damages.
IV.

Failure to State a Claim

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A.

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey

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v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Further, a liberal interpretation of a civil rights complaint may not supply essential

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elements of the claim that were not initially pled.

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Defendant Hamas “neglected false issues of material facts in a court of law” is extremely

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vague and fails to describe exactly what Defendant Hamas did or failed to do.

Count One–Defendant Hamas

Id.

Plaintiff’s allegation that

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Further, prosecutors are absolutely immune from liability under § 1983 for their

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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) (citing Imbler v. Pachtman, 424 U.S. 409, 430

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(1976)); Burns v. Reed, 500 U.S. 478, 486 (1991); Ashelman v. Pope, 793 F.2d 1072,

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1076 (9th Cir. 1986). Immunity extends to prosecutors for “eliciting false or defamatory

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testimony from witnesses” or for making “false or defamatory statements during, and

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related to judicial proceedings.” Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993)

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(citations omitted). This immunity also includes liability for suppression of evidence at

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trial. Paine v. City of Lompoc, 265 F.3d 975, 982 (9th Cir. 2001) (emphasis in original).

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Accordingly, Plaintiff has failed to state a claim in Count One.

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B.

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To establish that he was wrongly arrested in violation of the Fourth Amendment,

Count II

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Plaintiff must show that Defendants made the arrest without probable cause. Dubner v.

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City & County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). Probable cause

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exists when, taking together the totality of circumstances known to the arresting officer, a

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prudent person would conclude that there was a fair probability that the arrested person

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committed a crime. Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994). If a

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Defendant had probable cause, Plaintiff’s arrest was lawful regardless of the officer’s

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subjective motivation. Tatum v. City & County of S an Francisco, 441 F.3d 1090, 1094

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(9th Cir. 2006). Finally, “[p]robable cause supports an arrest so long as the arresting

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officers had probable cause to arrest the suspect for any criminal offense, regardless of

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their stated reason for the arrest.” Edgerly v. City & County of San Francisco, 495 F.3d

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645, 651-52 (9th Cir. 2007).

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Plaintiff argues that Defendant Bradley lacked probable cause to arrest Plaintiff

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because Plaintiff was ultimately not charged with forgery. However, as noted above,

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probable cause supports an arrest so long as there was probable cause to arrest the suspect

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for any criminal offense. Plaintiff therefore fails to state a claim in Count Two.

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C.

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To state a claim under § 1983, a plaintiff must: (1) “allege a violation of his

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constitutional rights”; and (2) “show that the defendant’s actions were taken under color

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of state law.” Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (citing Flagg Bros.,

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Inc. v. Brooks, 436 U.S. 149, 155-56 (1978)). “Acting under color of state law is ‘a

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jurisdictional requisite for a § 1983 action.’” Id. (quoting West v. Atkins, 487 U.S. 42, 46

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(1988)). Private parties generally do not act under color of state law, and are properly

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dismissed from a § 1983 action unless the plaintiff establishes by more than conclusory

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allegations that the private party was somehow a state actor. Price v. State of Hawaii,

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939 F.2d 701, 707-08 (9th Cir. 1991).

Count Three

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Although private parties who are jointly engaged with state officials in the

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challenged action are acting under color of law, Collins v. Womancare, 878 F.2d 1145,

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1154 (9th Cir. 1989), “merely complaining to the police does not convert a private party

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into a state actor. Nor is execution by a private party of a sworn complaint which forms

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the basis of an arrest enough to convert the private party’s acts into state action” Id. at

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1155 (citations omitted). Additionally, a “police officer’s issuance of citations based on

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the citizen’s arrest does not constitute joint action.” Id. at 1156.

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Defendant Quatarro is not a state actor and Plaintiff therefore fails to state a claim

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against her in Count three.

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V.

Dismissal without Leave to Amend

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The Court will dismiss the Complaint and this action because Plaintiff’s claims

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cannot be saved by amendment. See Lopez, 203 F.3d at 1127 (leave to amend should be

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granted unless the district court “determines that the pleading could not possibly be cured

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by the allegation of other facts”).

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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

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agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing

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fee of $16.95.

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(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.

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(4)

The Clerk of Court must make an entry on the docket stating that the

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dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).

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(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

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this decision would not be taken in good faith.

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Dated this 15th day of October, 2013.

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