Scales v. Maricopa County Public Defender's Office

Filing 3

ORDER Within 30 days of the date this Order is filed, Plaintiff must either pay the $400.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement. If Plaintif f fails to either pay the $400.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without furth er notice to Plaintiff. Plaintiff's Complaint (Doc. 1 ) is dismissed without prejudice for failure to file on a court-approved form. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with t his Order. If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff. Signed by Judge Steven P Logan on 10/31/2014. (Attachments: # 1 Instructions and form for leave to proceed informa pauperis (non-habeas), # 2 Instructions and form for filing a prisoner civil rights complaint)(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John M. Scales,

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No. CV 14-02303-PHX-SPL (MHB)
Plaintiff,

vs.

ORDER

Public Defender Office,

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Defendant.

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On October 15, 2014, Plaintiff John M. Scales, who is confined in the Maricopa

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County Lower Buckeye Jail, filed a “Motion for Relief Civil Rights Violation” that the

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Court will construe as a Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1).

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I.

Payment of Filing Fee

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

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

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

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

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

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

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statements from each institution where he was confined during the six-month period. Id.

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To assist prisoners in meeting these requirements, the Court requires use of a form

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application. LRCiv 3.4.

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

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

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

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

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

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

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

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Because Plaintiff has not paid the $400.00 filing and administrative fees or filed an

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Application to Proceed In Forma Pauperis, Plaintiff will be permitted 30 days from the

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filing date of this Order to submit a properly executed and certified Application to

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Proceed In Forma Pauperis, using the form included with this Order, or pay the $400.00

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filing and administrative fees.

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II.

Complaint not on Court-Approved Form

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Local Rule of Civil Procedure 3.4 requires in part that “[a]ll complaints and

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applications to proceed in forma pauperis by incarcerated persons shall be signed and

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legibly written or typewritten on forms approved by the Court and in accordance with the

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instructions provided with the forms.” Plaintiff’s Complaint is not on a court-approved

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form as required by Local Rule of Civil Procedure 3.4.

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therefore be dismissed without prejudice, with leave to amend, in order for Plaintiff to

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file an amended complaint on a court-approved form.

Plaintiff’s Complaint will

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Within 30 days, Plaintiff may submit a first amended complaint on a court-

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approved form. The Clerk of Court will mail Plaintiff a court-approved form to use for

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filing a first amended complaint. If Plaintiff fails to use the court-approved form, the

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Court may strike the amended complaint and dismiss this action without further notice to

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Plaintiff.

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

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Plaintiff must repeat this process for each person he names as a Defendant. If

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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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cause of action against persons acting under color of state law who have violated rights

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guaranteed by the United States Constitution and federal law. 42 U.S.C. § 1983; see also

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Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). However, a prerequisite for

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any relief under § 1983 is a showing that the defendant has acted under the color of state

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law. A public defender or court-appointed attorney representing a criminal defendant

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If Plaintiff files an amended complaint, he should take note that § 1983 provides a

does not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 325

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(1981); see also Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972).

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Moreover, although Plaintiff’s allegations are largely incoherent, it appears that

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Plaintiff is seeking to have the Public Defender’s Office withdraw as legal counsel and

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“withdraw and squash” a Rule 11 evaluation, is alleging that a Rule 11 evaluation will

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result in the denial of his right to a speedy trial and his “right to religious beliefs,” and is

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arguing that the criminal case against him and the Rule 11 evaluation should be

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“squashed.” Plaintiff should take note that the abstention doctrine set forth in Younger v.

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

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interfering with ongoing criminal proceedings in state court. “[O]nly in the most unusual

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circumstances is a defendant entitled to have federal interposition by way of injunction or

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habeas corpus until after the jury comes in, judgment has been appealed from and the

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case concluded in the state courts.” Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972).

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Special circumstances occur “[o]nly in cases of proven harassment or prosecutions

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undertaken by state officials in bad faith without hope of obtaining a valid conviction and

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perhaps in other extraordinary circumstances where irreparable injury can be shown.”

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Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980) (quoting Perez v. Ledesma, 401 U.S.

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82, 85 (1971)). “[T]he Speedy Trial Clause, when raised as an affirmative defense, does

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not embody a right which is necessarily forfeited by delaying review until after trial.”

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Carden, 626 F.2d at 84.

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III.

Warnings

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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.

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A.

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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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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, 963

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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)

Possible Dismissal

Within 30 days of the date this Order is filed, Plaintiff must either pay the

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$400.00 filing and administrative fees or file a complete Application to Proceed In

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Forma Pauperis and a certified six-month trust account statement.

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(2)

If Plaintiff fails to either pay the $400.00 filing and administrative fees or

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file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of

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Court must enter a judgment of dismissal of this action without prejudice and without

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further notice to Plaintiff.

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(3)

Plaintiff’s Complaint (Doc. 1) is dismissed without prejudice for failure

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to file on a court-approved form. Plaintiff has 30 days from the date this Order is filed to

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file a first amended complaint in compliance with this Order.

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(4)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

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prejudice and without further notice to Plaintiff.

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Court must, without further notice, enter a judgment of dismissal of this action without

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(5)

The Clerk of Court must mail Plaintiff a court-approved form for filing an

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Application to Proceed In Forma Pauperis (Non-Habeas) and a court-approved form for

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filing a civil rights complaint by a prisoner.

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Dated this 31st day of October, 2014.

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Honorable Steven P. Logan
United States District Judge

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