Jimenez v. Phoenix Police Department et al

Filing 12

ORDER that Plaintiff's 1 Complaint is DISMISSED for failure to state a claim and the Clerk of Court is directed to terminate this action. Signed by Magistrate Judge Bridget S Bade on 1/16/2015. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marco Antonio Jimenez,
Plaintiff,

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ORDER

v.

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No. CV-14-02444-PHX-BSB

Phoenix Police Department, et al.,

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Defendants.

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This matter is before the Court on its own review. On November 4, 2014, Plaintiff

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commenced this action and requested leave to proceed in forma pauperis. (Docs. 1, 2.)

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Plaintiff then filed several supplements to his Complaint alleging additional facts and

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legal theories. (Docs. 8, 9, 10.)

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The Court granted Plaintiff in forma pauperis status.

(Doc. 11.)

However,

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Plaintiff’s supplements made it unclear whether Plaintiff intended to litigate the claims in

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his Complaint, or whether he wanted to file an Amended Complaint that included

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additional allegations. Therefore, on December 18, 2014, the Court struck Plaintiff’s

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supplements and ordered Plaintiff either to file an Amended Complaint that included all

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of his factual and legal allegations, or to notify the Court that he wished to proceed on

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only the factual and legal allegations included in the Complaint. (Doc. 11 at 3.)

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The Court warned Plaintiff that failure to comply with the December 18, 2014

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Order could result in dismissal of his case for failure to comply with Court orders

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pursuant to Fed. R. Civ. P. 41(b). (Doc. 11 at 4.) The January 5, 2015 deadline to

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respond to the December 18, 2014 Order has passed, and Plaintiff has not filed an

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Amended Complaint, notified the Court that he wishes to proceed on the claims in his

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Complaint, or otherwise responded to that Order. The Court could dismiss this action

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based on Plaintiff’s failure to comply with the December 18, 2014 Order. See Fed. R.

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Civ. P. 41(b). However, in an abundance of caution and in view of the procedural history

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of this case, the Court interprets Plaintiff’s failure to respond to its December 18, 2014

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Order as an indication that he wishes to proceed only on the claims in his Complaint

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(Doc. 1), and screens that pleading pursuant to 28 U.S.C. § 1915(e)(2).

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I.

Legal Standard — 28 U.S.C. § 1915(e)(2)

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When a party has been granted in forma pauperis status, the district court “shall

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dismiss the case at any time if the court determines” that the “allegation of poverty is

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untrue,” or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim

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on which relief may be granted,” or “seeks monetary relief against a defendant who is

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immune from such relief.” 28 U.S.C. § 1915(e)(2). Although much of § 1915 details

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how prisoners can file proceedings in forma pauperis, § 1915(e) applies to all in forma

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pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122,

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1127 (9th Cir. 2000).

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“[A] complaint containing both factual allegations and legal conclusions is

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frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

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490 U.S. 319, 325 (1989). Furthermore, “a finding of factual frivolousness is appropriate

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when the facts alleged rise to the level of the irrational or wholly incredible, whether or

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not there are judicially recognized facts available to contradict them.”

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Hernandez, 504 U.S. 25, 33 (1992). “A case is malicious if it was filed with the intention

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or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

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II.

Denton v.

The Allegations in Plaintiff’s Complaint

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On November 4, 2014, Plaintiff filed a Complaint in this Court against the City of

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Phoenix Police Department, the Maricopa County Sheriff’s Office (MCSO), the

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Maricopa County Attorney’s Office (MCAO), the State of Arizona, and the District Court

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of Arizona. (Doc. 1.) Plaintiff claims that on July 2, 2008, he was falsely charged with

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assaulting a police officer and was detained in the Maricopa County Jail. (Doc. 1 at 1.)

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He further argues that he was later assigned to administrative segregation where the

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MCSO served him “cold beans and maggots, and wormwood” and graham crackers with

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“peanut butter [that] was possibly laced with arsenic” to try to “do away” with Plaintiff

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because he had filed lawsuits against the MCSO. (Id. at 1-2.)

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Plaintiff further alleges that after he filed claims against the City of Phoenix, the

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State of Arizona, the MCSO, and the MCAO, the MCSO bribed the judges involved in

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those suits to find the cases moot or frivolous, and the bribes were in the amount of 60

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million dollars, the “same amount Plaintiff was claiming” in his lawsuits. (Id.)

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Plaintiff requests the following relief: “all civil remedies, criminal penalties

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imposed,” subpoenas against the defendants to show up in the courts of Arizona, fair and

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speedy trials, and an audit regarding why there has been an abuse of discretion by the

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courts. (Id. at 3.)

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Although Plaintiff does not specifically identify the basis for the Court’s

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jurisdiction, liberally construing the Complaint, he appears to allege claims under 42

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U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

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403 U.S. 388 (1971).

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III.

Plaintiff’s Complaint Fails to State a Claim

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct about which he complains was committed by a person acting under the color of

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state law, and (2) the conduct deprived him of a federal constitutional or statutory right.

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Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a plaintiff must

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allege that he suffered a specific injury as a result of the conduct of a particular defendant

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and he must allege an affirmative link between the injury and the conduct of that

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

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To state a Bivens claim, a plaintiff must allege that persons acting under color of

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federal law violated his constitutional rights. Martin v. Sias, 88 F.3d 774, 775 (9th Cir.

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1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991)). Thus, an action

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under Bivens is identical to one brought pursuant to 42 U .S.C. § 1983 except for the

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replacement of a state actor under § 1983 by a federal actor under Bivens. Id.

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A.

The City of Phoenix Police Department

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Plaintiff lists the “City of Phoenix Police Department” as a Defendant.

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municipal police department is not a “person” within the meaning of § 1983. See Shivers

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v. City of Phoenix Police Dep’t., 2010 WL 2802521, at *2 (D. Ariz. Jul. 14, 2010) (citing

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Petaway v. City of New Haven Police Dep’t, 541 F.Supp.2d 504, 510 (D. Conn. 2008));

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Pahle v. Colebrookdale Twp., 227 F.Supp.2d 361, 366 (E.D. Pa. 2002). However, a

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municipality is a “person” for purposes of § 1983 and, therefore, a municipality such as a

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city or county, may be sued. See Leatherman v. Tarrant Cnty Narcotics Intelligence and

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Coordination Unit, 507 U.S. 163, 166 (1993); Monell v. Dep’t of Soc. Servs of the City of

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New York, 436 U.S. 658, 694 (1978). To state a claim against a municipality under

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§ 1983, a plaintiff must allege facts that his constitutional rights were violated pursuant to

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a policy, practice, or custom of the municipality. Cortez v. County of Los Angeles, 294

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F.3d 1186, 1188 (9th Cir. 2001) (citing Monell, 436 U.S. at 690-91).

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municipality may not be sued solely because an injury was inflicted by one of its

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employees or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006).

Thus, a

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Therefore, a § 1983 claim against a municipal defendant “cannot succeed as a

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matter of law” unless a plaintiff: (1) contends that the municipal defendant maintains a

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policy or custom pertinent to the plaintiff’s alleged injury; and (2) explains how such

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policy or custom caused the plaintiff’s injury. Sadoski v. Mosley, 435 F.3d 1076, 1080

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(9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant to Fed. R. Civ. P.

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12(b)(6)).

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The City of Phoenix Police Department is not a proper Defendant and it will be

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dismissed. To the extent that Plaintiff is attempting to sue the City of Phoenix, he fails to

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allege facts to support that the City of Phoenix maintained a policy, practice, or custom

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that resulted in the violation of Plaintiff’s federal constitutional rights or to explain how

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his injuries were caused by any municipal policy, practice or custom. Accordingly,

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Plaintiff also fails to state a claim against the City of Phoenix.

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B.

The Maricopa County Sheriff’s Office (MCSO)

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Plaintiff also lists the MCSO as a Defendant. However, the MCSO is not a proper

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defendant under § 1983. In Arizona, the responsibility of operating jails and caring for

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prisoners is placed by law upon the sheriff. See Ariz. Rev. Stat. § 11-441(A)(5); Ariz.

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Rev. Stat. § 31-101. A sheriff’s office is an administrative creation of the county sheriff

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to allow him to carry out his statutory duties and is not a “person” amenable to suit

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pursuant to § 1983. See Wilson v. Maricopa County, 2005 WL 3054051, at *2 (D. Ariz.

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Nov. 15, 2005) (concluding that the MCSO is not a jural entity separate from Maricopa

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County and dismissing the plaintiff’s claims against the MCSO).

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Maricopa County Sheriff’s Department will be dismissed from this action.

Accordingly, the

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Furthermore, even if the MCSO were a proper defendant, Plaintiff claims against

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the MCSO are time barred. Plaintiff alleges that, in 2008, the MCSO fed him cold beans,

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maggots, wormwood, and food laced with arsenic in retaliation for him filing lawsuits

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against the MCSO. (Doc. 1 at 2.) Plaintiff also alleges that “during that same time” the

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MCSO bribed judges to persuade them to dismiss Plaintiff’s claims as moot or frivolous.

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(Id.) These claims allege events that occurred outside the two-year statute of limitations

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that applies to his claims under § 1983. See Wallace v. Kato, 549 U.S. 384, 387 (2007)

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(Section 1983 does not contain its own statute of limitations, and thus federal courts

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apply the state statute of limitations for personal injury claims in § 1983 actions.);

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Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (“The

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statute of limitations applicable to an action pursuant to 42 U.S.C. § 1983 is the personal

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injury statute of limitations of the state in which the cause of action arose.”); Cholla

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Ready Mix, Inc. v. Civish, 382 F.3d 969, 984 (9th Cir. 2004) (“For these claims, we

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borrow Arizona’s statute of limitations for personal injury claims . . .The applicable

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statute of limitations for personal injury claims in Arizona is two years.” (citations

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omitted)).

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C.

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Plaintiff also lists the MCAO as a Defendant.

The Maricopa County Attorney’s Office (MCAO)
It is not, however, a proper

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defendant under § 1983. A “person” for purposes of § 1983, includes officials or officers

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who directly violated or caused a violation of a plaintiff’s constitutional rights and, as

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discussed above, a municipality if the plaintiff's constitutional injuries were the result of

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an official policy or custom of the municipality. Cortez, 294 F.3d at 1188 (citing Monell,

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436 U.S. at 690-91). In other words, a plaintiff must allege that action taken pursuant to

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official municipal policy violated his constitutional rights. Berry v. Baca, 379 F.3d 764,

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767 (9th Cir. 2004). The MCAO is neither an individual nor a municipality, therefore, it

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is not a “person” within the meaning of § 1983. Accordingly, it will be dismissed as a

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Defendant.

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D.

The State of Arizona

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Plaintiff also lists the State of Arizona as a Defendant. Under the Eleventh

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Amendment to the Constitution of the United States, a state or state agency may not be

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sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman,

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465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). In addition,

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neither the State of Arizona nor any State agency is a “person” within the meaning of

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§ 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989) (holding that the

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term “person” as used in § 1983 did not include a State or State agency). Therefore, the

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Court dismisses the State of Arizona as a Defendant.

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E.

The Arizona District Court

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Finally, Plaintiff lists the United States District Court for the District of Arizona as

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a Defendant. Because the district court is a federal, not a state, entity, Plaintiff may be

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attempting to allege a Bivens claim against it. See Bivens, 403 U.S. 388. To state a

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Bivens claim, a plaintiff must allege that persons acting under color of federal law

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violated his constitutional rights. Martin v. Sias, 88 F.3d 774, 775 (9th Cir.1996) (citing

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Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991)).

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A Bivens claim can be brought only against federal officials in their individual

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capacities. A Bivens claim cannot be asserted directly against the United States, federal

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officials in their official capacities, Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001),

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or federal agencies, F.D.I.C. v. Meyer, 510 U.S. 471, 485-86 (1994). Accordingly, the

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United States District Court for the District of Arizona is not a proper defendant and will

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be dismissed.1

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IV.

Conclusion

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Plaintiff’s Complaint fails to state a claim and the deficiencies identified in this

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Order cannot be cured by amendment. Accordingly, the Court dismisses the Complaint

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for failure to state a claim.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Complaint is DISMISSED for failure to state a

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claim and the Clerk of Court is directed to terminate this action.
Dated this 16th day of January, 2015.

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Additionally, Plaintiff fails to state a claim against the City of Phoenix, the
MCAO, and against the Arizona District Court because he does not allege that he
suffered a specific injury as a result of the conduct of these Defendants and he does not
allege an affirmative link between any injury and the conduct of these Defendants. See
Rizzo, 423 U.S. at 371-72, 377.
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