Crowley v. Unknown Party et al
Filing
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ORDER - (1) The Complaint (Doc. 1 ) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. (2) If Plaintiff fails to file an amended compl aint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). (See document for full details). Signed by Judge Steven P Logan on 7/11/14. (Attachments: # 1 Prisoner Civil Rights Complaint form) (LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Robert Jay Crowley,
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No. CV 14-00166-PHX-SPL (MHB)
Plaintiff,
vs.
ORDER
Apache Junction Police Chief, et al.,
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Defendants.
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County Jail, 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. In a January 31, 2014 Order, the
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Court denied the deficient Application to Proceed and gave Plaintiff 30 days to either pay
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the filing and administrative fees or file a complete Application to Proceed In Forma
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Pauperis. On February 11, 2014, Plaintiff filed a new Application to Proceed In Forma
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Pauperis. In an April 21, 2014 Order, the Court denied the deficient Application to
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Proceed and gave Plaintiff 30 days to either pay the filing and administrative fees or file a
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complete Application to Proceed In Forma Pauperis. On May 8, 2014, Plaintiff filed
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another Application to Proceed In Forma Pauperis. On June 2, 2014, Plaintiff filed a
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Notice of Change of Address, indicating that he was no longer in custody. In a June 6,
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2014 Order, the Court granted the Application to Proceed and required Plaintiff to either
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pay the filing fee or show good cause why he cannot pay. On July 3, 2014, Plaintiff paid
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On January 28, 2014, Plaintiff Robert Jay Crowley, who was confined in the Pinal
the filing fee.
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The Court will dismiss the Complaint with leave to amend.
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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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).
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Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may
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possibly be amended to state a claim, the Court will dismiss it with leave to amend.
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II.
Complaint
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In his eight-count Complaint, Plaintiff sues Apache Junction Police Detectives
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Jason Riggs #222 and Chacom #145, the Apache Junction Police Chief, and Pinal County
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Sheriff Paul Babeu. Plaintiff seeks damages.
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In Count One, Plaintiff alleges that his Fourth Amendment rights were violated
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and alleges the following facts: On or about June 6, 2013, around 1:30 p.m., Defendants
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Riggs and Chacom stopped Plaintiff in his 1966 Chevy Truck, Arizona license plate
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number HVRT67, and arrested Plaintiff for dangerous drug sales. A search warrant to
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search Plaintiff’s 2002 Chevy Truck, Arizona license plate numberAJX9166, was
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reportedly executed at 3:15 p.m., although there is no time stamp on the face of that
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search warrant, and search warrant number SW-2013-0016 “has failed to be public
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information.” Plaintiff contends there was no probable cause.
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In Count Two, Plaintiff alleges that his Fourth and Fifth Amendment rights were
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violated on or about June 6, 2013 by an “illegal unvalid execution of a search warrant.”
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As a result, Plaintiff alleges that he lost his home and all the property inside due to a
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burglary.
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properly served (executed). Property not named in search warrant.”
Property was “unsecured by AJPD Detectives & officers.
Warrant not
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In Count Three, Plaintiff alleges that his Fourth and Fifth Amendment rights were
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violated on or about June 6, 2013 when he lost his “business & livel[i]hood; not named in
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search warrant by Apache Junction Police Department.”
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In Count Four, Plaintiff alleges that his Fourth and Fifth Amendment rights were
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violated on or about June 6, 2013 when he lost his 1966 Chevy truck with Arizona
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license plate number HVRT67 “not named in search warrant due to theft & unsecured by
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AJPD.”
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In Count Five, Plaintiff alleges that his Fourth and Fifth Amendment rights were
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violated on or about June 6, 2013 when he lost his 2002 Harley Davidson Night Train
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“not named in search warrant due to theft unsecured by AJPD.”
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In Count Six, Plaintiff alleges that his Fourth and Fifth Amendment rights were
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violated on or about June 6, 2013 when he lost his 1991 International Harvester Hydrotilt
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Truck “not named in search warrant due to theft unsecured by AJPD.”
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In Count Seven, Plaintiff alleges that his Fourth and Fifth Amendment rights were
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violated on or about June 6, 2013 when he lost $100,000 “worth of equipment & tools not
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named on said search warrant due to theft of unsecured property by AJPD.”
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In Count Eight, Plaintiff alleges that his Fourteenth Amendment rights were
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violated, that he has lost equal protection under the law, and “unlawful imprisonment &
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detainment” by Defendant Babeu. Plaintiff further alleges that he has been denied his
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civil right “guilty till innocent” and was “not allowed to file charges against the people
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who[] stole from [him] as a result of AJPD’s action of failure to protect [his] right &
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property.”
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III.
Failure to State a Claim
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defendants (2) under color of state law (3) deprived her of federal rights, privileges or
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immunities and (4) caused her damage. Thornton v. City of St. Helens, 425 F.3d 1158,
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1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game
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Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that she
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suffered a specific injury as a result of the conduct of a particular defendant and she must
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allege an affirmative link between the injury and the conduct of that defendant. Rizzo v.
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To prevail in a 42 U.S.C. § 1983 claim, a plaintiff must show that (1) acts by the
Goode, 423 U.S. 362, 371-72, 377 (1976).
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A.
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Plaintiff names the Apache Junction Police Chief as a Defendant. While the
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Apache Junction Police Chief may be sued under § 1983, Plaintiff fails to state a claim
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against him or her.
Apache Junction Police Chief
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To state a claim against a defendant, “[a] plaintiff must allege facts, not simply
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conclusions, that show that an individual was personally involved in the deprivation of
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his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an
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individual to be liable in his official capacity, a plaintiff must allege that the official acted
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as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles, 294 F.3d
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1186, 1188 (9th Cir. 2001). Further, there is no respondeat superior liability under
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§1983, so a defendant’s position as the supervisor of someone who allegedly violated a
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plaintiff’s constitutional rights does not make him liable. Monell v. Dep’t of Soc. Servs.,
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436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A
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supervisor in his individual capacity, “is only liable for constitutional violations of his
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subordinates if the supervisor participated in or directed the violations, or knew of the
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violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045.
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Plaintiff fails to allege any facts against the Apache Junction Police Chief.
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Plaintiff does not allege that the Apache Junction Police Chief violated his constitutional
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rights, nor does he allege facts to support that Plaintiff’s rights were violated as a result of
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a policy, custom, or practice promulgated, endorsed, or condoned by the Apache Junction
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Police Chief. Accordingly, Plaintiff fails to state a claim against the Apache Junction
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Police Chief and the Apache Junction Police Chief will be dismissed.
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Plaintiff also fails to state a claim against Defendant Babeu. Plaintiff makes one
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conclusory allegation in Count Eight that he has “lost equal protection under the law &
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unlawful imprisonment & detainment by Sheriff Paul Babeu.” It is not clear if Plaintiff’s
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claim against Babeu is based on a theory of respondeat superior or if Plaintiff is alleging
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B.
that Babeu personally imprisoned and detained him. As noted, there is no respondeat
Babeu
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superior liability under §1983. Therefore, if Plaintiff’s claim is that Babeu supervised
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someone who allegedly violated Plaintiff’s constitutional rights, then that claim fails. In
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addition, Plaintiff has presented no facts supporting that Babeu actually participated in or
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directed any alleged violations, or knew of the violations and failed to act to prevent
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them. Finally, Plaintiff does not allege facts to support that Plaintiff’s rights were
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violated as a result of a policy, custom, or practice promulgated, endorsed, or condoned
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by Babeu. Accordingly, Defendant Babeu will be dismissed.
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C.
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Plaintiff alleges in Count One that he was arrested by Defendants Riggs and
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Chacom and deprived of his freedom and liberty. To establish that he was wrongly
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arrested in violation of the Fourth Amendment, Plaintiff must show that Defendants made
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the arrest without probable cause. Dubner v. City & County of S.F., 266 F.3d 959, 964
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(9th Cir. 2001). To determine whether arresting officers had probable cause at the time
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of a warrantless arrest, the Court considers “whether at that moment the facts and
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circumstances within [the officers’] knowledge . . . were sufficient to warrant a prudent
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man in believing that the petitioner had committed or was committing an offense.”
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Edgerly v. City & County of San Francisco, 495 F.3d 645, 651 (9th Cir. 2007).
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“Probable cause supports an arrest so long as the arresting officers had probable cause to
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arrest the suspect for any criminal offense, regardless of their stated reason for the arrest.”
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Id. at 651-52.
Count One
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without probable cause. Plaintiff makes one conclusory assertion in Count One regarding
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probable cause, and the Court cannot tell if Plaintiff’s assertion, “without probal [sic]
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cause,” refers to his arrest or the search warrant. Regardless, a mere conclusory assertion
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that officers lacked probable cause is insufficient to state a claim, and Count One and
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Defendants Riggs and Chacom will be dismissed.
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Plaintiff has not alleged facts sufficient to demonstrate that he was arrested
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D.
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In Counts Two through Seven, Plaintiff alleges that he lost his home and all the
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property inside his home (Count Two), his business and livelihood (Count Three), a 1966
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Chevy truck (Count Four), a 2002 Harley Davidson Night Train (Count Five), a 1991
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International Harvester Hydrotilt truck (Count Six), and $100,000 worth of equipment
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and tools (Count Seven). In each of those counts, Plaintiff alleges that the property was
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not named in a search warrant. In all but Count Three, Plaintiff appears to allege that his
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property was stolen because it was unsecured either by “AJPD detectives & officers”
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(Count Two) or simply by the “AJPD” (Counts Four, Five, Six, and Seven).
Counts Two through Seven
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In addition to failing to name an identifiable defendant responsible for the alleged
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deprivations of property, Plaintiff fails to state a claim in Counts Two, Four, Five, Six
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and Seven because he has an adequate post-deprivation remedy in state court. In Parratt
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v. Taylor, the Supreme Court held that due process is not violated when a state employee
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negligently deprives an individual of property, as long as the state makes available a
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meaningful post-deprivation remedy. 451 U.S. 527, 541 (1981), overruled on other
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grounds by Daniels v. Williams, 474 U.S. 327 (1986). The rationale underlying Parratt
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is that pre-deprivation procedures are impractical when the deprivation of property
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occurs through negligent conduct of a state employee because a state cannot know when
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such deprivations will occur. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Moreover,
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“[w]here a government official’s act causing injury to life, liberty, or property is merely
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negligent, ‘no procedure for compensation is constitutionally required.’” Daniels, 474
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U.S. at 333 (quoting Parratt, 451 U.S. at 548) (emphasis added).
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property by state actors because a state also cannot know when such deprivations will
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occur. Hudson, 468 U.S. at 533. As with negligent deprivations, where a state makes
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available a meaningful post-deprivation remedy, such as a common-law tort suit for
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intentional unauthorized deprivations, a federal due process claim is precluded. Hudson,
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The logic of Parratt has been extended to intentional unauthorized deprivations of
468 U.S. at 534-35; King v. Massarweh, 782 F.2d 825, 826 (9th Cir. 1986).
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In this case, Plaintiff fails to state a claim because he has an available adequate
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post-deprivation remedy in Arizona state courts. See Howland v. State, 818 P.2d 1169,
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1172-73 (Ariz. App. 1991) (the prisoner failed to state a due process claim where Arizona
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law provided an available state tort remedy to recover the value of his property). Thus,
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Plaintiff has failed to state a § 1983 claim regarding the loss of his property and Counts
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Two, Four, Five, Six and Seven, and those Counts will be dismissed.
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As to Count Three, although Plaintiff claims that he lost his livelihood and
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business, it is not clear from Plaintiff’s cursory allegation what happened to cause him to
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lose his business and livelihood. Moreover, if Plaintiff were able to prevail on a claim
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such as wrongful arrest and imprisonment, and if the loss of Plaintiff’s business and
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livelihood were a result of that wrongful arrest and imprisonment, then the loss of
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Plaintiff’s business and livelihood would be an element of Plaintiff’s damage claim and
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not a separate constitutional violation. Accordingly, Count Three is dismissed.
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E.
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Plaintiff’s allegations in Count Eight are mostly unintelligible. He purports to
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bring a Fourteenth Amendment claim and states that he has lost “equal protection under
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the law,” was unlawfully imprisoned and detained by Defendant Babeu, has been denied
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his “civil right guilty till innocent,” and was “not allowed to file charges against the
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people” who stole from him.
Count Eight
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detained him, Plaintiff fails to state who specifically denied him equal protection, his
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civil rights, or prevented him from filing charges. Moreover, Plaintiff’s vague and
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conclusory allegations fail to support an equal protection, or any other, claim. Although
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pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
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conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of
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Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal
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interpretation of a civil rights complaint may not supply essential elements of the claim
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Aside from the allegation that Defendant Babeu unlawfully imprisoned and
that were not initially pled. Id. Accordingly, Count Eight will be dismissed.
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In addition, “[t]o state a claim . . . for a violation of the Equal Protection Clause . .
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. [,] a plaintiff must show that the defendants acted with an intent or purpose to
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discriminate against the plaintiff based upon membership in a protected class.” Barren v.
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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged he is a
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member of a protected class.
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The United States Supreme Court has also recognized “successful equal protection
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claims brought by a ‘class of one,’ where the plaintiff alleges that [he] has been
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intentionally treated differently from others similarly situated and that there is no rational
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basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,
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564 (2000); see also SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d
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662, 679 (9th Cir. 2002). Even under this standard, Plaintiff has failed to state a claim.
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Plaintiff has failed to allege that he was treated differently than other similarly situated
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individuals and that there was no rational basis for treating him differently.
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IV.
Leave to Amend
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For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to
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state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a
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first amended complaint to cure the deficiencies outlined above. The Clerk of Court will
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mail Plaintiff a court-approved form to use for filing a first amended complaint. If
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Plaintiff fails to use the court-approved form, the Court may strike the amended
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complaint and dismiss this action without further notice to Plaintiff.
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If Plaintiff files an amended complaint, Plaintiff must write short, plain statements
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telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name
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of the Defendant who violated the right; (3) exactly what that Defendant did or failed to
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do; (4) how the action or inaction of that Defendant is connected to the violation of
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Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of
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that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377.
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Plaintiff must repeat this process for each person he names as a Defendant. If
Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific
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injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for
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failure to state a claim.
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Defendants has violated a constitutional right are not acceptable and will be
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dismissed.
Conclusory allegations that a Defendant or group of
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Plaintiff must clearly designate on the face of the document that it is the “First
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Amended Complaint.” The first amended complaint must be retyped or rewritten in its
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entirety on the court-approved form and may not incorporate any part of the original
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Complaint by reference. Plaintiff may include only one claim per count.
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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet,
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963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896
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F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original
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complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised
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in the original complaint and that was voluntarily dismissed or was dismissed without
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prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa
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County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
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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 submit an additional copy of every filing for use by the Court. See
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LRCiv 5.4. Failure to comply may result in the filing being stricken without further
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notice to Plaintiff.
Copies
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If Plaintiff fails to timely comply with every provision of this Order, including
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C.
these warnings, the Court may dismiss this action without further notice. See Ferdik, 963
Possible Dismissal
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F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any
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order of the Court).
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IT IS ORDERED:
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(1)
The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff
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has 30 days from the date this Order is filed to file a first amended complaint in
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compliance with this Order.
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(2)
If Plaintiff fails to file an amended complaint within 30 days, the Clerk of
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Court must, without further notice, enter a judgment of dismissal of this action with
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prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).
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(3)
The Clerk of Court must mail Plaintiff a court-approved form for filing a
civil rights complaint by a prisoner.
Dated this 11th day of July, 2014.
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Honorable Steven P. Logan
United States District Judge
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