Almendarez v. Imdorf et al

Filing 12

ORDER: Counts I and II are dismissed without prejudice. Defendant Ferree is dismissed without prejudice. Defendants' Motion to Stay/Motion to Dismiss 10 is denied as premature. This case is stayed pending the resolution of Plaintiff's criminal case currently pending in the Maricopa County Superior Court, case #CR2012-007199-001. The Clerk of Court must indicate on the docket that this case is stayed. Within 90 days, Defendant Imdorf must file with the Court a "Notice of St atus" that informs the Court of the status of Plaintiff's criminal case currently pending in the Maricopa County Superior Court, case #CR2012-007199-001. Defendant Imdorf must file a "Notice of Status" within 15 days after entr y of judgment in Maricopa County Superior Court case #CR2012-007199-001. Defendant Imdorf must not answer or otherwise respond to Count III in the Second Amended Complaint until further order of the Court. Signed by Senior Judge Robert C Broomfield on 3/5/2014. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tony Ray Almendarez,

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No. CV 13-1995-PHX-RCB (SPL)

Plaintiff,
vs.

ORDER

John Imdorf, et al.,

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Defendants.

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On August 5, 2013, Plaintiff Tony Ray Almendarez, who is confined in the

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Maricopa County Fourth Avenue Jail, filed a Complaint in Maricopa County Superior

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Court, Matter No. CV 2013-010195. In his Complaint, Plaintiff asserted claims of

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unlawful arrest, malicious prosecution, defamation, illegal search and seizure and due

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process violations. Plaintiff named two individuals in his Complaint: Phoenix Police

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Officer John Imdorf and Phoenix Police Detective James Ferree. On October 2, 2013,

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Defendants Imdorf and Ferree removed the case to federal court based on federal

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question subject matter jurisdiction. On October 28, 2013, Plaintiff filed a Motion for

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Leave to File an Amended Complaint along with a lodged proposed Amended

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Complaint. In an Order dated December 4, 2013, the Court found that removal was

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proper, ordered that Plaintiff’s lodged Amended Complaint be filed as Plaintiff’s First

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Amended Complaint, and dismissed the First Amended Complaint with leave to amend

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for failure to comply with Rule 8 of the Federal Rules of Civil Procedure.

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On December 9, 2013, Plaintiff filed an Amended Complaint (Doc. 8) but did not

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use the court-approved form. On December 31, 2013, Plaintiff filed a Second Amended

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Complaint (Doc. 9) using the court-approved form. The Second Amended Complaint

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supersedes the Amended Complaint. On January 17, 2014, Defendants filed a Motion to

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Stay/Motion to Dismiss (Doc. 10). The Court will dismiss Defendant Ferree and Counts

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I and II of the Second Amended Complaint. The Court will not dismiss Count Three and

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Defendant Imdorf, but will not require Defendant Imdorf to answer Count III at this time.

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The Court will stay this case and will require Defendant Imdorf to file a notice every 90

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days regarding the status of Plaintiff’s pending state criminal case. The Court will deny

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the Motion to Stay/Motion to Dismiss.1

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I.

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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Defendants filed their Motion to Stay/Motion to Dismiss prior to screening by
the Court of the Second Amended Complaint. As such, their motion was premature and,
as to Counts I and II and Defendant Ferree, moot.
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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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II.

Second Amended Complaint

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In his Second Amended Complaint, Plaintiff alleges three counts of malicious

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prosecution, arrest without probable cause, and an unfairly suggestive witness

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identification procedure. Plaintiff sues Officer John Imdorf and Detective James Ferree

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of the Phoenix Police Department. Plaintiff seeks compensatory and punitive damages

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and court fees.

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Plaintiff asserts a claim of malicious prosecution in Count I. Plaintiff alleges that

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on August 23, 2012, Defendant Ferree was a witness during grand jury proceedings and

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“fabricated and misrepresented facts in the reports” that led to Plaintiff’s indictment by

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the grand jury for first-degree burglary and armed robbery. According to Plaintiff,

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Ferree’s presentation to the grand jury “inculpate[d]” Plaintiff as an accomplice to a

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crime when the correct facts would merely show Plaintiff “as being present when a crime

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has been committed[.]” Plaintiff appears to allege that Ferree represented to the grand

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jury that Plaintiff was the driver of a getaway vehicle when “the reports state the plaintiff

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was the passenger.” Plaintiff also alleges that Ferree “confused material issues when he

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misrepresented the passenger (which the reports state is the plaintiff) led the police on a

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foot pursuit, when the reports state the passenger was apprehended without police

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chasing him on foot.”

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evidence that is apparently different from information in reports.

Plaintiff makes further allegations about Ferree presenting

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In Count II, Plaintiff alleges that on August 15, 2012, Defendant Imdorf arrested

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Plaintiff without probable cause. Plaintiff alleges that Imdorf responded to a radio

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broadcast of two men breaking things inside a house and that the men drove off from the

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house in a blue car.

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provoked by officers” and run off and hop over a brick wall. Imdorf “came into contact

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with the plaintiff who fit the description in a front yard of a residence and without the

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plaintiff resisting in any way he failed to read the plaintiff his Miranda rights or

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investigate him in any way or advise him of the reasons he’s being arrested.” Imdorf

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drew his weapon on Plaintiff, ordered him to the ground, and “violently placed him in

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handcuffs.” Plaintiff alleges that Imdorf took him to a crime scene “he wasn’t suspected

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of committing without trying to first gain the plaintiff’s permission or ex[]igent

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circumstances requiring it, which unduly infringed upon the plaintiff’s liberty and

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constitutes an arrest without probable cause because the information in the officer’s

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possession at the time of arrest only barely warranted the officer to conduct an

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investigatory stop.”

Imdorf then saw a passenger leave a vehicle “without being

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In Count III, Plaintiff alleges that on August 15, 2012, Defendant Imdorf subjected

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Plaintiff “to an unnecessarily and unduly [sic] identification procedure by transferring

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[Plaintiff] from his place of detention without first attempting to gain his permission or

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ex[]igent circumstances requiring it to a crime scene that of which he wasn’t suspected of

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committing to be identified by a fearful crying witness under poor visual conditions

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because the witness wears prescription glasses and was in the back seat of a police cruiser

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with a security mesh covered window blocking her view from (50) plus feet away[.]”

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Plaintiff alleges that he was the only suspect in handcuffs and was surrounded by officers

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who placed Plaintiff behind the vehicle that the witness had just identified as belonging to

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the suspect she had witnessed in her home. Plaintiff asserts that the witness “was never

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read any kind of identification card but was told that the police have the person in

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custody she described.”

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condemned and with all the other suggestive circumstances involved this identification

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procedure is not only unnecessarily suggestive because officers had ample opportunity to

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conduct a more reliable less suggestive identification[.]”

Plaintiff argues that “showing a suspect singly is widely

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Additional Background

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According to records available online, Plaintiff is currently awaiting trial on a

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first-degree burglary charge in Maricopa County Superior Court Case #CR2012-007199-

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001 with an offense date of August 15, 2012.2 A charge of armed robbery was dismissed

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by motion of the prosecution on May 31, 2013.3 Trial is currently scheduled for April 8,

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2014.4

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III.

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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Plaintiff designates Count I as a claim for malicious prosecution regarding

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Defendant Ferree’s testimony during grand jury proceedings, which led to Plaintiff’s

Malicious Prosecution (Count I)

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See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo
.asp (last visited February 27, 2014).
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See Minute Entry dated May 31, 2013 at
http://www.courtminutes.maricopa.gov/docs/Criminal/062013/m5813238.pdf (last visited
February 27, 2014).
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See Minute Entry dated February 2, 2014 at
http://www.courtminutes.maricopa.gov/docs/Criminal/022014/m6179980.pdf (last visited
February 27, 2014).
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indictment. To state a claim for malicious prosecution, a plaintiff must allege facts to

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support that a defendant prosecuted him with malice and without probable cause for the

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purpose of denying equal protection or another specific constitutional right. Awabdy v.

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City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) (citing Freeman v. City of Santa

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Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)).

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Plaintiff alleges, and records available online confirm, that Plaintiff was indicted

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by the grand jury; that is sufficient to establish probable cause for Plaintiff’s prosecution.

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See Segura v. Cunanan, 219 P.3d 228, 234 (Ariz. App. 2008) (probable cause for a

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prosecution may be established by obtaining a grand jury indictment). Id. Moreover, the

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Supreme Court has held that “a grand jury witness has absolute immunity from any

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§ 1983 claim based on the witness’ testimony.” Rehberg v. Paulk, 132 S. Ct. 1497, 1506

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(2012) (investigator in district attorney’s office was entitled to absolute immunity;

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however, “law enforcement officials who falsify affidavits” or “fabricate evidence

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concerning an unsolved crime” are only entitled to qualified immunity). Finally, a cause

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of action for malicious prosecution does not accrue until a plaintiff has been acquitted.

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See Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir.1998) (plaintiff's

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“malicious prosecution claim did not accrue until his acquittal”); RK Ventures, Inc. v.

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City of Seattle, 307 F.3d 1045, 1060 n.11 (9th Cir.2002) (“a claim of malicious

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prosecution does not accrue until the plaintiff is acquitted, because acquittal is an element

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of the claim”). Plaintiff does not allege, and it does not appear, that Plaintiff has been

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acquitted of the underlying charges. Accordingly, Plaintiff fails to state a claim for

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malicious prosecution and Count I and Defendant Ferree will be dismissed.

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B.

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Plaintiff alleges in Count II that he was arrested by Defendant Imdorf without

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probable cause, in violation of the Fourth Amendment. Although unclear, Plaintiff

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appears to be attempting to allege a claim for false arrest. To state a § 1983 claim for

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false arrest, a plaintiff must allege that there was no probable cause for his arrest. See

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Cabrera, 159 F.3d at 380 (citing George v. City of Long Beach, 973 F.2d 706, 710 (9th

Arrest (Count II)

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Cir.1992)). Probable cause “exists when under the totality of the circumstances known to

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the arresting officers, a prudent person would have concluded that there was a fair

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probability that [the person arrested] had committed a crime.” Barlow v. Ground, 943

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F.2d 1132, 1135 (9th Cir. 1991).

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warrants be based upon probable cause may be satisfied by an indictment returned by a

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grand jury. See Kalina v. Fletcher, 522 U.S. 118, 129 (1997).

The Fourth Amendment requirement that arrest

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Here, Plaintiff alleges, and the state court docket confirms, that Plaintiff was

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indicted by a grand jury, which establishes the existence of probable cause for Plaintiff’s

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arrest. Accordingly, Plaintiff fails to state a claim for false arrest and Count II will be

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dismissed.

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IV.

Stay of Count III

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The abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971),

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prevents a federal court in most circumstances from directly interfering with ongoing

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criminal proceedings in state court. Younger principles also apply to a plaintiff’s request

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for damages, but in that situation, a temporary stay, rather than dismissal, is appropriate.

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Gilbertson v. Albright, 381 F.3d 965, 981 (9th Cir. 2004). Staying the federal case until

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the state court criminal case is no longer pending

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allows the federal plaintiff an opportunity to pursue constitutional
challenges in the state proceeding (assuming, of course, that such an
opportunity is available under state law), and the state an opportunity to
pass on those constitutional issues in the context of its own procedures,
while still preserving the federal plaintiff’s opportunity to pursue
compensation in the forum of his choice. In this way, neither the federal
plaintiff’s right to seek damages for constitutional violations nor the state’s
interest in its own system is frustrated.

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Id.

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In this case, Plaintiff alleges in Count III that Defendant Imdorf violated his

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Fourteenth Amendment rights by subjecting him to an unduly suggestive witness

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identification procedure. Charges incident to that procedure are currently pending against

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Plaintiff in state court. If Plaintiff is convicted, it appears that success on his Fourteenth

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Amendment claim in this case would necessarily imply the invalidity of such conviction.

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It appears, therefore, that a stay of this case is appropriate under Younger and Gilbertson.

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It also appears that a stay is appropriate under Wallace v. Kato, 549 U.S. 384, 39394 (2007). In that case, the Supreme Court stated:
[I]f a plaintiff files a false arrest claim before he has been convicted (or
files any other claim related to rulings that will likely be made in a pending
or anticipated criminal trial), it is within the power of the district court, and
in accord with common practice, to stay the civil action until the criminal
case or the likelihood of a criminal case is ended. If the plaintiff is
ultimately convicted, and if the stayed civil suit would impugn that
conviction, Heck [v. Humphrey, 512 U.S. 477 (1994)], will require
dismissal; otherwise, the civil action will proceed, absent some other bar to
suit.
Id. at 393-94 (citations omitted).5

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Liberally construed, Plaintiff states a claim against Defendant Imdorf in Count III

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for violation of his Fourteenth Amendment rights. As discussed herein, a criminal case

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related to Plaintiff’s remaining civil claim in this case is currently pending. The Court

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therefore finds that a stay of that claim appears to be appropriate in this civil case. If

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Plaintiff is ultimately convicted in his criminal case and his conviction is not reversed,

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expunged, or otherwise invalidated, the remaining claim in his Second Amended

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Complaint will be barred by Heck, because success on the claim would necessarily imply

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the invalidity of his conviction. See Wallace, 549 U.S. at 393; Heck, 512 U.S. at 486-87.

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However, if Plaintiff is not convicted, an answer to this claim will be appropriate.

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In Heck v. Humphrey, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.

512 U.S. 477, 486-87 (1994) (emphasis in original) (footnote omitted).
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The Court will stay this case and will not require Defendant Imdorf to file an

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answer to Count III at this time. However, Defendant Imdorf will be required to file a

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notice every 90 days regarding the status of Plaintiff’s pending criminal case.

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V.

Warnings

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A.

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Plaintiff must file and serve a notice of a change of address in accordance with

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Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

Address Changes

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B.

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Plaintiff must serve Defendant, or counsel if an appearance has been entered, a

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copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a

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certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also,

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Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv

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5.4. Failure to comply may result in the filing being stricken without further notice to

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Plaintiff.

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C.

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If Plaintiff fails to timely comply with every provision of this Order, including

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these warnings, the Court may dismiss this action without further notice. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action

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for failure to comply with any order of the Court).

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IT IS ORDERED:

Copies

Possible Dismissal

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(1)

Counts I and II are dismissed without prejudice.

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(2)

Defendant Ferree is dismissed without prejudice.

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(3)

Defendants’ Motion to Stay/Motion to Dismiss (Doc. 10) is denied as

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premature.

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...

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...

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(4)

This case is stayed pending the resolution of Plaintiff’s criminal case

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currently pending in the Maricopa County Superior Court, case #CR2012-007199-001.

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The Clerk of Court must indicate on the docket that this case is stayed.

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(5)

Within 90 days, Defendant Imdorf must file with the Court a “Notice of

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Status” that informs the Court of the status of Plaintiff’s criminal case currently pending

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in the Maricopa County Superior Court, case #CR2012-007199-001.

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(6)

Defendant Imdorf must file a “Notice of Status” within 15 days after entry

of judgment in Maricopa County Superior Court case #CR2012-007199-001.
(7)

Defendant Imdorf must not answer or otherwise respond to Count III in the

Second Amended Complaint until further order of the Court.
DATED this 5th day of March, 2014.

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