Micolo v. Pinal, County of et al
ORDER that Plaintiff's motion to amend (Doc. 59 ) is granted. Plaintiff's amended complaint (Doc. 60 ) is dismissed without prejudice. Plaintiff may file a second amended complaint by April 15, 2016. If Plaintiff fails to file a second amended complaint by that date, the Clerk is directed to terminate this matter without further order of the Court. Signed by Judge David G Campbell on 3/22/16. (KGM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Michael Carmine Micolo,
County of Pinal, et al.,
Pursuant to the Court’s February 16, 2016 order (Doc. 56), Plaintiff Michael
Micolo filed an amended complaint on March 11, 2016. Docs. 59; 60. The Court has
reviewed the amended complaint and determined that it must be dismissed. The Court
will, once again, grant Plaintiff leave to amend his complaint with respect to the claim for
excessive force relating to officers’ conduct after the arrest.
Plaintiff has again failed to allege sufficient factual detail to state an excessive
force claim relating to the arresting officers’ conduct after the arrest. Although Plaintiff
did include some additional factual detail, the addition that he “was placed on his back
causing injuries to his arms and legs,” which “made it hard to breath[e],” remains
insufficient to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). If Plaintiff chooses to file a second amended complaint, he is directed to the
Court’s guidance in its prior order. See Doc. 56 at 5-6.
Plaintiff’s amended complaint includes a claim for malicious prosecution.
Plaintiff’s malicious prosecution claim is barred by Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). See Doc. 56 at 3-5. Under Heck, before Plaintiff may seek to recover
damages under 42 U.S.C. § 1983 for malicious prosecution, he must first show that his
conviction or sentence has been invalidated by a state or federal court. Id. Absent such a
showing, Plaintiff may not include a malicious prosecution claim in his second amended
Plaintiff included claims against Pinal County as well as state law claims in his
amended complaint. See Doc. 60. The Court previously dismissed Defendant Pinal
County and all state law claims. Doc. 24. Plaintiff therefore may not include claims
against Pinal County or state claims in its second amended complaint.
IT IS ORDERED:
Plaintiff’s motion to amend (Doc. 59) is granted.
Plaintiff’s amended complaint (Doc. 60) is dismissed without prejudice.
Plaintiff may file a second amended complaint by April 15, 2016. If
Plaintiff fails to file a second amended complaint by that date, the Clerk is
directed to terminate this matter without further order of the Court.
Dated this 22nd day of March, 2016.
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