Crowley v. Unknown Party et al

Filing 15

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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1 WO MD 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Jay Crowley, 10 11 12 No. CV 14-00166-PHX-SPL (MHB) Plaintiff, vs. ORDER Apache Junction Police Chief, et al., 13 Defendants. 14 15 16 County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) 17 and an Application to Proceed In Forma Pauperis. In a January 31, 2014 Order, the 18 Court denied the deficient Application to Proceed and gave Plaintiff 30 days to either pay 19 the filing and administrative fees or file a complete Application to Proceed In Forma 20 Pauperis. On February 11, 2014, Plaintiff filed a new Application to Proceed In Forma 21 Pauperis. In an April 21, 2014 Order, the Court denied the deficient Application to 22 Proceed and gave Plaintiff 30 days to either pay the filing and administrative fees or file a 23 complete Application to Proceed In Forma Pauperis. On May 8, 2014, Plaintiff filed 24 another Application to Proceed In Forma Pauperis. On June 2, 2014, Plaintiff filed a 25 Notice of Change of Address, indicating that he was no longer in custody. In a June 6, 26 2014 Order, the Court granted the Application to Proceed and required Plaintiff to either 27 pay the filing fee or show good cause why he cannot pay. On July 3, 2014, Plaintiff paid 28 JDDL-K On January 28, 2014, Plaintiff Robert Jay Crowley, who was confined in the Pinal the filing fee. 1 2 The Court will dismiss the Complaint with leave to amend. I. Statutory Screening of Prisoner Complaints 3 The Court is required to screen complaints brought by prisoners seeking relief 4 against a governmental entity or an officer or an employee of a governmental entity. 28 5 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 6 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 7 which relief may be granted, or that seek monetary relief from a defendant who is 8 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 A pleading must contain a “short and plain statement of the claim showing that the 10 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 11 does not demand detailed factual allegations, “it demands more than an unadorned, the- 12 defendant-unlawfully-harmed-me accusation.” 13 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 15 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 16 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 17 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable 19 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 20 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 21 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 22 specific factual allegations may be consistent with a constitutional claim, a court must 23 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 24 at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, 26 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 27 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 28 JDDL-K -2- 1 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 2 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 3 If the Court determines that a pleading could be cured by the allegation of other 4 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 5 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 6 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 7 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 8 II. Complaint 9 In his eight-count Complaint, Plaintiff sues Apache Junction Police Detectives 10 Jason Riggs #222 and Chacom #145, the Apache Junction Police Chief, and Pinal County 11 Sheriff Paul Babeu. Plaintiff seeks damages. 12 In Count One, Plaintiff alleges that his Fourth Amendment rights were violated 13 and alleges the following facts: On or about June 6, 2013, around 1:30 p.m., Defendants 14 Riggs and Chacom stopped Plaintiff in his 1966 Chevy Truck, Arizona license plate 15 number HVRT67, and arrested Plaintiff for dangerous drug sales. A search warrant to 16 search Plaintiff’s 2002 Chevy Truck, Arizona license plate numberAJX9166, was 17 reportedly executed at 3:15 p.m., although there is no time stamp on the face of that 18 search warrant, and search warrant number SW-2013-0016 “has failed to be public 19 information.” Plaintiff contends there was no probable cause. 20 In Count Two, Plaintiff alleges that his Fourth and Fifth Amendment rights were 21 violated on or about June 6, 2013 by an “illegal unvalid execution of a search warrant.” 22 As a result, Plaintiff alleges that he lost his home and all the property inside due to a 23 burglary. 24 properly served (executed). Property not named in search warrant.” Property was “unsecured by AJPD Detectives & officers. Warrant not 25 In Count Three, Plaintiff alleges that his Fourth and Fifth Amendment rights were 26 violated on or about June 6, 2013 when he lost his “business & livel[i]hood; not named in 27 search warrant by Apache Junction Police Department.” 28 JDDL-K -3- 1 In Count Four, Plaintiff alleges that his Fourth and Fifth Amendment rights were 2 violated on or about June 6, 2013 when he lost his 1966 Chevy truck with Arizona 3 license plate number HVRT67 “not named in search warrant due to theft & unsecured by 4 AJPD.” 5 In Count Five, Plaintiff alleges that his Fourth and Fifth Amendment rights were 6 violated on or about June 6, 2013 when he lost his 2002 Harley Davidson Night Train 7 “not named in search warrant due to theft unsecured by AJPD.” 8 In Count Six, Plaintiff alleges that his Fourth and Fifth Amendment rights were 9 violated on or about June 6, 2013 when he lost his 1991 International Harvester Hydrotilt 10 Truck “not named in search warrant due to theft unsecured by AJPD.” 11 In Count Seven, Plaintiff alleges that his Fourth and Fifth Amendment rights were 12 violated on or about June 6, 2013 when he lost $100,000 “worth of equipment & tools not 13 named on said search warrant due to theft of unsecured property by AJPD.” 14 In Count Eight, Plaintiff alleges that his Fourteenth Amendment rights were 15 violated, that he has lost equal protection under the law, and “unlawful imprisonment & 16 detainment” by Defendant Babeu. Plaintiff further alleges that he has been denied his 17 civil right “guilty till innocent” and was “not allowed to file charges against the people 18 who[] stole from [him] as a result of AJPD’s action of failure to protect [his] right & 19 property.” 20 III. Failure to State a Claim 21 22 defendants (2) under color of state law (3) deprived her of federal rights, privileges or 23 immunities and (4) caused her damage. Thornton v. City of St. Helens, 425 F.3d 1158, 24 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game 25 Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that she 26 suffered a specific injury as a result of the conduct of a particular defendant and she must 27 allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. 28 JDDL-K 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). -4- 1 A. 2 Plaintiff names the Apache Junction Police Chief as a Defendant. While the 3 Apache Junction Police Chief may be sued under § 1983, Plaintiff fails to state a claim 4 against him or her. Apache Junction Police Chief 5 To state a claim against a defendant, “[a] plaintiff must allege facts, not simply 6 conclusions, that show that an individual was personally involved in the deprivation of 7 his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an 8 individual to be liable in his official capacity, a plaintiff must allege that the official acted 9 as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles, 294 F.3d 10 1186, 1188 (9th Cir. 2001). Further, there is no respondeat superior liability under 11 §1983, so a defendant’s position as the supervisor of someone who allegedly violated a 12 plaintiff’s constitutional rights does not make him liable. Monell v. Dep’t of Soc. Servs., 13 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A 14 supervisor in his individual capacity, “is only liable for constitutional violations of his 15 subordinates if the supervisor participated in or directed the violations, or knew of the 16 violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. 17 Plaintiff fails to allege any facts against the Apache Junction Police Chief. 18 Plaintiff does not allege that the Apache Junction Police Chief violated his constitutional 19 rights, nor does he allege facts to support that Plaintiff’s rights were violated as a result of 20 a policy, custom, or practice promulgated, endorsed, or condoned by the Apache Junction 21 Police Chief. Accordingly, Plaintiff fails to state a claim against the Apache Junction 22 Police Chief and the Apache Junction Police Chief will be dismissed. 23 24 Plaintiff also fails to state a claim against Defendant Babeu. Plaintiff makes one 25 conclusory allegation in Count Eight that he has “lost equal protection under the law & 26 unlawful imprisonment & detainment by Sheriff Paul Babeu.” It is not clear if Plaintiff’s 27 claim against Babeu is based on a theory of respondeat superior or if Plaintiff is alleging 28 JDDL-K B. that Babeu personally imprisoned and detained him. As noted, there is no respondeat Babeu -5- 1 superior liability under §1983. Therefore, if Plaintiff’s claim is that Babeu supervised 2 someone who allegedly violated Plaintiff’s constitutional rights, then that claim fails. In 3 addition, Plaintiff has presented no facts supporting that Babeu actually participated in or 4 directed any alleged violations, or knew of the violations and failed to act to prevent 5 them. Finally, Plaintiff does not allege facts to support that Plaintiff’s rights were 6 violated as a result of a policy, custom, or practice promulgated, endorsed, or condoned 7 by Babeu. Accordingly, Defendant Babeu will be dismissed. 8 C. 9 Plaintiff alleges in Count One that he was arrested by Defendants Riggs and 10 Chacom and deprived of his freedom and liberty. To establish that he was wrongly 11 arrested in violation of the Fourth Amendment, Plaintiff must show that Defendants made 12 the arrest without probable cause. Dubner v. City & County of S.F., 266 F.3d 959, 964 13 (9th Cir. 2001). To determine whether arresting officers had probable cause at the time 14 of a warrantless arrest, the Court considers “whether at that moment the facts and 15 circumstances within [the officers’] knowledge . . . were sufficient to warrant a prudent 16 man in believing that the petitioner had committed or was committing an offense.” 17 Edgerly v. City & County of San Francisco, 495 F.3d 645, 651 (9th Cir. 2007). 18 “Probable cause supports an arrest so long as the arresting officers had probable cause to 19 arrest the suspect for any criminal offense, regardless of their stated reason for the arrest.” 20 Id. at 651-52. Count One 21 22 without probable cause. Plaintiff makes one conclusory assertion in Count One regarding 23 probable cause, and the Court cannot tell if Plaintiff’s assertion, “without probal [sic] 24 cause,” refers to his arrest or the search warrant. Regardless, a mere conclusory assertion 25 that officers lacked probable cause is insufficient to state a claim, and Count One and 26 Defendants Riggs and Chacom will be dismissed. 27 .... 28 JDDL-K Plaintiff has not alleged facts sufficient to demonstrate that he was arrested .... -6- 1 D. 2 In Counts Two through Seven, Plaintiff alleges that he lost his home and all the 3 property inside his home (Count Two), his business and livelihood (Count Three), a 1966 4 Chevy truck (Count Four), a 2002 Harley Davidson Night Train (Count Five), a 1991 5 International Harvester Hydrotilt truck (Count Six), and $100,000 worth of equipment 6 and tools (Count Seven). In each of those counts, Plaintiff alleges that the property was 7 not named in a search warrant. In all but Count Three, Plaintiff appears to allege that his 8 property was stolen because it was unsecured either by “AJPD detectives & officers” 9 (Count Two) or simply by the “AJPD” (Counts Four, Five, Six, and Seven). Counts Two through Seven 10 In addition to failing to name an identifiable defendant responsible for the alleged 11 deprivations of property, Plaintiff fails to state a claim in Counts Two, Four, Five, Six 12 and Seven because he has an adequate post-deprivation remedy in state court. In Parratt 13 v. Taylor, the Supreme Court held that due process is not violated when a state employee 14 negligently deprives an individual of property, as long as the state makes available a 15 meaningful post-deprivation remedy. 451 U.S. 527, 541 (1981), overruled on other 16 grounds by Daniels v. Williams, 474 U.S. 327 (1986). The rationale underlying Parratt 17 is that pre-deprivation procedures are impractical when the deprivation of property 18 occurs through negligent conduct of a state employee because a state cannot know when 19 such deprivations will occur. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Moreover, 20 “[w]here a government official’s act causing injury to life, liberty, or property is merely 21 negligent, ‘no procedure for compensation is constitutionally required.’” Daniels, 474 22 U.S. at 333 (quoting Parratt, 451 U.S. at 548) (emphasis added). 23 24 property by state actors because a state also cannot know when such deprivations will 25 occur. Hudson, 468 U.S. at 533. As with negligent deprivations, where a state makes 26 available a meaningful post-deprivation remedy, such as a common-law tort suit for 27 intentional unauthorized deprivations, a federal due process claim is precluded. Hudson, 28 JDDL-K 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). -7- 1 In this case, Plaintiff fails to state a claim because he has an available adequate 2 post-deprivation remedy in Arizona state courts. See Howland v. State, 818 P.2d 1169, 3 1172-73 (Ariz. App. 1991) (the prisoner failed to state a due process claim where Arizona 4 law provided an available state tort remedy to recover the value of his property). Thus, 5 Plaintiff has failed to state a § 1983 claim regarding the loss of his property and Counts 6 Two, Four, Five, Six and Seven, and those Counts will be dismissed. 7 As to Count Three, although Plaintiff claims that he lost his livelihood and 8 business, it is not clear from Plaintiff’s cursory allegation what happened to cause him to 9 lose his business and livelihood. Moreover, if Plaintiff were able to prevail on a claim 10 such as wrongful arrest and imprisonment, and if the loss of Plaintiff’s business and 11 livelihood were a result of that wrongful arrest and imprisonment, then the loss of 12 Plaintiff’s business and livelihood would be an element of Plaintiff’s damage claim and 13 not a separate constitutional violation. Accordingly, Count Three is dismissed. 14 E. 15 Plaintiff’s allegations in Count Eight are mostly unintelligible. He purports to 16 bring a Fourteenth Amendment claim and states that he has lost “equal protection under 17 the law,” was unlawfully imprisoned and detained by Defendant Babeu, has been denied 18 his “civil right guilty till innocent,” and was “not allowed to file charges against the 19 people” who stole from him. Count Eight 20 21 detained him, Plaintiff fails to state who specifically denied him equal protection, his 22 civil rights, or prevented him from filing charges. Moreover, Plaintiff’s vague and 23 conclusory allegations fail to support an equal protection, or any other, claim. Although 24 pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), 25 conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of 26 Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal 27 interpretation of a civil rights complaint may not supply essential elements of the claim 28 JDDL-K Aside from the allegation that Defendant Babeu unlawfully imprisoned and that were not initially pled. Id. Accordingly, Count Eight will be dismissed. -8- 1 In addition, “[t]o state a claim . . . for a violation of the Equal Protection Clause . . 2 . [,] a plaintiff must show that the defendants acted with an intent or purpose to 3 discriminate against the plaintiff based upon membership in a protected class.” Barren v. 4 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged he is a 5 member of a protected class. 6 The United States Supreme Court has also recognized “successful equal protection 7 claims brought by a ‘class of one,’ where the plaintiff alleges that [he] has been 8 intentionally treated differently from others similarly situated and that there is no rational 9 basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 10 564 (2000); see also SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 11 662, 679 (9th Cir. 2002). Even under this standard, Plaintiff has failed to state a claim. 12 Plaintiff has failed to allege that he was treated differently than other similarly situated 13 individuals and that there was no rational basis for treating him differently. 14 IV. Leave to Amend 15 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to 16 state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 17 first amended complaint to cure the deficiencies outlined above. The Clerk of Court will 18 mail Plaintiff a court-approved form to use for filing a first amended complaint. If 19 Plaintiff fails to use the court-approved form, the Court may strike the amended 20 complaint and dismiss this action without further notice to Plaintiff. 21 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 22 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 23 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 24 do; (4) how the action or inaction of that Defendant is connected to the violation of 25 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 26 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 27 28 JDDL-K 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 -9- 1 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 2 failure to state a claim. 3 Defendants has violated a constitutional right are not acceptable and will be 4 dismissed. Conclusory allegations that a Defendant or group of 5 Plaintiff must clearly designate on the face of the document that it is the “First 6 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 7 entirety on the court-approved form and may not incorporate any part of the original 8 Complaint by reference. Plaintiff may include only one claim per count. 9 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 10 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 11 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 12 complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 13 in the original complaint and that was voluntarily dismissed or was dismissed without 14 prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa 15 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 16 V. Warnings 17 A. 18 Plaintiff must file and serve a notice of a change of address in accordance with 19 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 20 for other relief with a notice of change of address. Failure to comply may result in 21 dismissal of this action. Address Changes 22 B. 23 Plaintiff must submit an additional copy of every filing for use by the Court. See 24 LRCiv 5.4. Failure to comply may result in the filing being stricken without further 25 notice to Plaintiff. Copies 26 27 If Plaintiff fails to timely comply with every provision of this Order, including 28 JDDL-K C. these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 Possible Dismissal - 10 - 1 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any 2 order of the Court). 3 IT IS ORDERED: 4 (1) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 5 has 30 days from the date this Order is filed to file a first amended complaint in 6 compliance with this Order. 7 (2) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 8 Court must, without further notice, enter a judgment of dismissal of this action with 9 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g). 10 11 12 (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. 13 14 Honorable Steven P. Logan United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K - 11 -

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