Micolo v. Pinal, County of et al

Filing 61

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Carmine Micolo,
Plaintiff,

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ORDER

v.

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No. CV-14-02649-PHX-DGC

County of Pinal, et al.,

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Defendants.

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Pursuant to the Court’s February 16, 2016 order (Doc. 56), Plaintiff Michael

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Micolo filed an amended complaint on March 11, 2016. Docs. 59; 60. The Court has

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reviewed the amended complaint and determined that it must be dismissed. The Court

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will, once again, grant Plaintiff leave to amend his complaint with respect to the claim for

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excessive force relating to officers’ conduct after the arrest.

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Plaintiff has again failed to allege sufficient factual detail to state an excessive

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force claim relating to the arresting officers’ conduct after the arrest. Although Plaintiff

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did include some additional factual detail, the addition that he “was placed on his back

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causing injuries to his arms and legs,” which “made it hard to breath[e],” remains

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insufficient to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007)). If Plaintiff chooses to file a second amended complaint, he is directed to the

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Court’s guidance in its prior order. See Doc. 56 at 5-6.

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Plaintiff’s amended complaint includes a claim for malicious prosecution.

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Plaintiff’s malicious prosecution claim is barred by Heck v. Humphrey, 512 U.S. 477,

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486-87 (1994). See Doc. 56 at 3-5. Under Heck, before Plaintiff may seek to recover

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damages under 42 U.S.C. § 1983 for malicious prosecution, he must first show that his

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conviction or sentence has been invalidated by a state or federal court. Id. Absent such a

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showing, Plaintiff may not include a malicious prosecution claim in his second amended

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complaint.

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Plaintiff included claims against Pinal County as well as state law claims in his

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amended complaint. See Doc. 60. The Court previously dismissed Defendant Pinal

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County and all state law claims. Doc. 24. Plaintiff therefore may not include claims

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against Pinal County or state claims in its second amended complaint.

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IT IS ORDERED:

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Plaintiff’s motion to amend (Doc. 59) is granted.

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2.

Plaintiff’s amended complaint (Doc. 60) is dismissed without prejudice.

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Plaintiff may file a second amended complaint by April 15, 2016. If

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Plaintiff fails to file a second amended complaint by that date, the Clerk is

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directed to terminate this matter without further order of the Court.

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Dated this 22nd day of March, 2016.

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