Armendariz v. Hamilton

Filing 8

ORDER that the Complaint is dismissed for failure to state a claim and the Clerk must enter judgment. IT IS FURTHER ORDERED denying as moot 6 Motion for Leave to Proceed In Forma Pauperis. 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 the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge David G Campbell on 4/8/15.(LSP)

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ASH
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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Scott Jordan Armendariz,

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No. CV 14-2739-PHX-DGC (BSB)

Plaintiff,
v.

ORDER

Lynn T. Hamilton,

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Defendant.

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On December 19, 2014, Plaintiff Scott Jordan Armendariz, who is confined in the

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Gila County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983

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(Doc 1), but did not either pay the $400 filing and administrative fees or submit an

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Application to Proceed In Forma Pauperis. By Order dated January 13, 2015, the Court

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provided Plaintiff with 30 days in which to either pay the filing and administrative fees,

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or submit an Application to Proceed In Forma Pauperis.
Two days later, on January 15, 2015, Plaintiff filed a First Amended Complaint

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that superseded the original Complaint in its entirety. Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). On January 23, 2015, Plaintiff submitted an Application to Proceed

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In Forma Pauperis (Doc. 5), followed by an Amended Application to Proceed In Forma

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Pauperis filed on February 2, 2015 (Doc. 6). The Court will dismiss 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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If the Court determines that a pleading could be cured by the allegation of other

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facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

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of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).

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Plaintiff’s Complaint will be dismissed for failure to state a claim, without leave to

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amend because the defects cannot be corrected.

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II.

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Complaint
In his single-count First Amended Complaint, Plaintiff names Lynn T. Hamilton

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as the sole Defendant. Plaintiff alleges a single claim regarding Hamilton’s performance

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as Plaintiff’s defense attorney in an underlying criminal proceeding.

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III.

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Failure to State a Claim
A prerequisite for any relief under 42 U.S.C. § 1983 is a showing that the

defendant has acted under the color of state law. Whether an attorney representing a

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criminal defendant is a public defender or court-appointed counsel, he or she does not act

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under color of state law. See Polk County v. Dodson, 454 U.S. 312, 317-18, 102 S.Ct.

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445, 449-50, 70 L.Ed.2d 509 (1981). Therefore, Plaintiff’s civil rights claims against

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Defendant Hamilton must fail unless Plaintiff can set out facts showing a conspiracy

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between his counsel and state officials to deny him the right to adequate representation

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under the Sixth Amendment. See Tower v. Glover, 467 U.S. 914, 920 (1984). Plaintiff

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has not made any such allegation, nor does it appear that he could plausibly make such an

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allegation. Accordingly, Plaintiff’s Complaint will be dismissed for failure to state a

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claim for which relief could be granted. Because it does not appear that Plaintiff could

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allege any facts that would cure the deficiency described herein, Plaintiff’s Complaint

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will be dismissed without leave to amend, and the Clerk of Court will be directed to

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terminate this matter.

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IT IS ORDERED:

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(1)

28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment accordingly.

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The Complaint (Doc. 1) is dismissed for failure to state a claim pursuant to

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Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 6) is denied as

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The Clerk of Court must make an entry on the docket stating that the

moot.

dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).

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(4)

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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