Parks v. Montgomery et al
Filing
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ORDER: Plaintiff's 10 Second Amended Complaint and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. The Clerk must make an entry on the docket stating that the dismissal for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). The docket shall reflect that any appeal of this decision would not be taken in good faith. Signed by Judge David G Campbell on 4/8/2015. (LFIG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Damiano Vidal Parks,
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No. CV 14-2387-PHX-DGC (JZB)
Plaintiff,
v.
ORDER
William G. Montgomery, et al.,
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Defendants.
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On October 27, 2014, Plaintiff Damiano Vidal Parks, who is confined in the
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Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42
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U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. Subsequently, on
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November 14, 2014, Plaintiff filed a First Amended Complaint that superseded the
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original Complaint in its entirety. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
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1992). In a January 13, 2015 Order, the Court dismissed the First Amended Complaint
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because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a
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second amended complaint that cured the deficiencies identified in the Order.
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On February 2, 2015, Plaintiff filed a Second Amended Complaint (Doc. 10). The
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Court will dismiss the Second Amended Complaint and this action.
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I.
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Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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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.
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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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II.
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Second Amended Complaint
As in his First Amended Complaint, Plaintiff names Maricopa County Attorney
William G. Montgomery and Deputy Maricopa County Attorney Kurt N. Mills as
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Defendants. Plaintiff requests that his pending state criminal charges be dismissed, and
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seeks monetary relief.
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Plaintiff alleges that on September 11, 2014, he was supposed to receive a hearing
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in Maricopa County Superior Court in an underlying criminal case. According to
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Plaintiff, it had been agreed upon by himself, his attorney, and the Defendants that if the
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State’s witnesses did not appear at the hearing, Plaintiff would be released from custody,
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although his charges would not be dropped or dismissed. Plaintiff alleges that the
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witnesses failed to appear, but that he was not released and instead had his hearing
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vacated in light of a supervening indictment.
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IV.
Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants
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(2) under color of state law (3) deprived him of federal rights, privileges or immunities
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and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th
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Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d
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1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific
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injury as a result of the conduct of a particular defendant and he must allege an
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affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode,
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423 U.S. 362, 371-72, 377 (1976).
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A.
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As explained in the January 13 Order, Prosecutors are absolutely immune from
Defendants are Immune
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liability under § 1983 for their conduct in “initiating a prosecution and in presenting the
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State’s case” insofar as that conduct is “intimately associated with the judicial phase of
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the criminal process.” Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (citing Imbler
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v. Pachtman, 424 U.S. 409, 430 (1976)); Burns v. Reed, 500 U.S. 478, 486 (1991)
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(quoting Imbler, 424 U.S. at430-431); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir.
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1986). None of Plaintiff’s allegations appear to concern any conduct by Defendants that
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would fall outside of those duties typically associated with “initiating a prosecution and
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presenting the State’s case.” Buckley, 509 U.S. at 270. Accordingly, Defendants are
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absolutely immune from suit, and will be dismissed.
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B.
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The abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971),
Abstention Doctrine
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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. Further, the Younger abstention doctrine bars
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requests for declaratory and monetary relief for constitutional injuries arising out of a
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plaintiff’s current state criminal prosecution. Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir.
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1986) (per curiam). The Younger abstention doctrine also applies while the case works
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its way through the state appellate process. New Orleans Pub. Serv., Inc. v. Council of
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City of New Orleans, 491 U.S. 350, 369 (1989) (“[f]or Younger purposes, the State’s
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trial-and-appeals process is treated as a unitary system”); Huffman v. Pursue, Ltd., 420
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U.S. 592, 608 (1975) (“Virtually all of the evils at which Younger is directed would
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inhere in federal intervention prior to completion of state appellate proceedings, just as
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surely as they would if such intervention occurred at or before trial.”) . Additionally, this
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Court only has jurisdiction to adjudicate issues that are currently in controversy and
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thereby ripe for review. 18 Unnamed John Smith Prisoners v. Meese, 871 F.2d 881, 883
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(9th Cir. 1989). Thus, if Plaintiff's criminal proceedings have not concluded, any issues
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related to those proceedings would not be ripe for federal review. If relief is available to
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Plaintiff in connection with these proceedings, it lies in the state court.
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IV.
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Dismissal without Leave to Amend
Because Plaintiff has failed to state a claim in his Second Amended Complaint, the
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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given
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if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express,
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Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is
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particularly broad where Plaintiff has previously been permitted to amend his complaint.
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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996).
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Repeated failure to cure deficiencies is one of the factors to be considered in deciding
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whether justice requires granting leave to amend. Moore, 885 F.2d at 538.
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Plaintiff has made three efforts at crafting a viable complaint and appears unable
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to do so despite specific instructions from the Court. The Court finds that further
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opportunities to amend would be futile. Therefore, the Court, in its discretion, will
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dismiss Plaintiff’s Second Amended Complaint without leave to amend.
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IT IS ORDERED:
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(1)
Plaintiff’s Second Amended Complaint (Doc. 10) and this action are
dismissed for failure to state a claim, and the Clerk of Court must enter judgment
accordingly.
(2)
The Clerk of Court must make an entry on the docket stating that the
dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
(3)
The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.
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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of
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this decision would not be taken in good faith.
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Dated this 8th day of April, 2015.
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