Parks v. Montgomery et al

Filing 12

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)

1
2

ASH
WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Damiano Vidal Parks,

10
11
12

No. CV 14-2387-PHX-DGC (JZB)

Plaintiff,
v.

ORDER

William G. Montgomery, et al.,

13
Defendants.

14
15
16

On October 27, 2014, Plaintiff Damiano Vidal Parks, who is confined in the

17

Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42

18

U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. Subsequently, on

19

November 14, 2014, Plaintiff filed a First Amended Complaint that superseded the

20

original Complaint in its entirety. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

21

1992). In a January 13, 2015 Order, the Court dismissed the First Amended Complaint

22

because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a

23

second amended complaint that cured the deficiencies identified in the Order.

24

On February 2, 2015, Plaintiff filed a Second Amended Complaint (Doc. 10). The

25

Court will dismiss the Second Amended Complaint and this action.

26

I.

27
28

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

1

U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

2

has raised claims that are legally frivolous or malicious, that fail to state a claim upon

3

which relief may be granted, or that seek monetary relief from a defendant who is

4

immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).

5

A pleading must contain a “short and plain statement of the claim showing that the

6

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

7

does not demand detailed factual allegations, “it demands more than an unadorned, the-

8

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

9

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

10

conclusory statements, do not suffice.” Id.

11

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

12

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

13

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual

14

content that allows the court to draw the reasonable inference that the defendant is liable

15

for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

16

claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

17

on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

18

specific factual allegations may be consistent with a constitutional claim, a court must

19

assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

20

at 681.

21

But as the United States Court of Appeals for the Ninth Circuit has instructed,

22

courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

23

342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

24

stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

25

Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

26

II.

27
28

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

-2-

1

Defendants. Plaintiff requests that his pending state criminal charges be dismissed, and

2

seeks monetary relief.

3

Plaintiff alleges that on September 11, 2014, he was supposed to receive a hearing

4

in Maricopa County Superior Court in an underlying criminal case. According to

5

Plaintiff, it had been agreed upon by himself, his attorney, and the Defendants that if the

6

State’s witnesses did not appear at the hearing, Plaintiff would be released from custody,

7

although his charges would not be dropped or dismissed. Plaintiff alleges that the

8

witnesses failed to appear, but that he was not released and instead had his hearing

9

vacated in light of a supervening indictment.

10
11

IV.

Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

12

(2) under color of state law (3) deprived him of federal rights, privileges or immunities

13

and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th

14

Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d

15

1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific

16

injury as a result of the conduct of a particular defendant and he must allege an

17

affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode,

18

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

19

A.

20

As explained in the January 13 Order, Prosecutors are absolutely immune from

Defendants are Immune

21

liability under § 1983 for their conduct in “initiating a prosecution and in presenting the

22

State’s case” insofar as that conduct is “intimately associated with the judicial phase of

23

the criminal process.” Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (citing Imbler

24

v. Pachtman, 424 U.S. 409, 430 (1976)); Burns v. Reed, 500 U.S. 478, 486 (1991)

25

(quoting Imbler, 424 U.S. at430-431); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir.

26

1986). None of Plaintiff’s allegations appear to concern any conduct by Defendants that

27

would fall outside of those duties typically associated with “initiating a prosecution and

28

-3-

1

presenting the State’s case.” Buckley, 509 U.S. at 270. Accordingly, Defendants are

2

absolutely immune from suit, and will be dismissed.

3

B.

4

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

Abstention Doctrine

5

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

6

criminal proceedings in state court. Further, the Younger abstention doctrine bars

7

requests for declaratory and monetary relief for constitutional injuries arising out of a

8

plaintiff’s current state criminal prosecution. Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir.

9

1986) (per curiam). The Younger abstention doctrine also applies while the case works

10

its way through the state appellate process. New Orleans Pub. Serv., Inc. v. Council of

11

City of New Orleans, 491 U.S. 350, 369 (1989) (“[f]or Younger purposes, the State’s

12

trial-and-appeals process is treated as a unitary system”); Huffman v. Pursue, Ltd., 420

13

U.S. 592, 608 (1975) (“Virtually all of the evils at which Younger is directed would

14

inhere in federal intervention prior to completion of state appellate proceedings, just as

15

surely as they would if such intervention occurred at or before trial.”) . Additionally, this

16

Court only has jurisdiction to adjudicate issues that are currently in controversy and

17

thereby ripe for review. 18 Unnamed John Smith Prisoners v. Meese, 871 F.2d 881, 883

18

(9th Cir. 1989). Thus, if Plaintiff's criminal proceedings have not concluded, any issues

19

related to those proceedings would not be ripe for federal review. If relief is available to

20

Plaintiff in connection with these proceedings, it lies in the state court.

21

IV.

22

Dismissal without Leave to Amend
Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

23

Court will dismiss his Second Amended Complaint. “Leave to amend need not be given

24

if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express,

25

Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

26

particularly broad where Plaintiff has previously been permitted to amend his complaint.

27

Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996).

28

-4-

1

Repeated failure to cure deficiencies is one of the factors to be considered in deciding

2

whether justice requires granting leave to amend. Moore, 885 F.2d at 538.

3

Plaintiff has made three efforts at crafting a viable complaint and appears unable

4

to do so despite specific instructions from the Court. The Court finds that further

5

opportunities to amend would be futile. Therefore, the Court, in its discretion, will

6

dismiss Plaintiff’s Second Amended Complaint without leave to amend.

7

IT IS ORDERED:

8
9
10
11
12
13

(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.

14

§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of

15

this decision would not be taken in good faith.

16

Dated this 8th day of April, 2015.

17
18
19
20
21
22
23
24
25
26
27
28

-5-