Caraffa v. Arizona, State of

1 WO MDR [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Alfred E. Caraffa, No. CV 20-00800-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER [12] State of Arizona, et al., [13] Defendants. [14] 15 On April 23, 2020, Plaintiff Alfred E. Caraffa, who is confined in a Maricopa 16 County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 . In a May 17 1, 2020 Order, the Court gave Plaintiff thirty days to pay the filing and administrative fees 18 or file an Application to Proceed In Forma Pauperis. The Court also denied as moot 19 Plaintiff’s “Motion to Combine with Same Issues of. Additional to Case CV-20-0059820 PHX,” which was attached to Plaintiff’s Complaint, because Caraffa v. Arizona, CV 2021 00598-PHX-MTL (ESW) was closed. 22 On May 18, 2020, Plaintiff filed a First Amended Complaint (Doc. 5 at 24) and an 23 Application to Proceed In Forma Pauperis (Doc. 6). The Court will grant the Application 24 to Proceed and will dismiss the First Amended Complaint and this action. 25 I. Application to Proceed In Forma Pauperis and Filing Fee 26 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 27 U.S.C. § 1915 (a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 28 § 1915(b)(1). The Court will assess an initial partial filing fee of $5.00. The remainder of 1 the fee will be collected monthly in payments of 20% of the previous month’s income 2 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. [3] 28 U.S.C. § 1915 (b)(2). The Court will enter a separate Order requiring the appropriate 4 government agency to collect and forward the fees according to the statutory formula. 5 II. Statutory Screening of Prisoner Complaints 6 The Court is required to screen complaints brought by prisoners seeking relief 7 against a governmental entity or an officer or an employee of a governmental entity. 28 8 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 9 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 10 relief may be granted, or that seek monetary relief from a defendant who is immune from 11 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 12 A pleading must contain a “short and plain statement of the claim showing that the 13 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 14 not demand detailed factual allegations, “it demands more than an unadorned, the15 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 16 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Id. 18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 19 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, [20] 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 23 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. at 679 . Thus, although a plaintiff’s specific factual 25 allegations may be consistent with a constitutional claim, a court must assess whether there 26 are other “more likely explanations” for a defendant’s conduct. Id. at 681 . 27 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 28 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338 , 342 1 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 2 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 3 U.S. 89 , 94 (2007) (per curiam)). 4 If the Court determines that a pleading could be cured by the allegation of other 5 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 6 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 7 Plaintiff’s First Amended Complaint will be dismissed for failure to state a claim, without 8 leave to amend because the defects cannot be corrected. 9 III. First Amended Complaint 10 The First Amended Complaint supersedes the original Complaint. Ferdik v. 11 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & 12 Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court treats the original 13 Complaint as nonexistent. Ferdik, 963 F.2d at 1262 . Thus, the Court will consider only 14 those claims raised in the First Amended Complaint against only those Defendants named 15 in the First Amended Complaint. 16 In his four-count First Amended Complaint, Plaintiff seeks monetary damages from 17 Defendants the State of Arizona, the Maricopa County Sheriff’s Office (MCSO), and the 18 United States. In each count, Plaintiff alleges violations of his due process rights. 19 In Count One, Plaintiff claims that on April 7, 2020, he filed a motion to dismiss 20 counsel, a motion for appointment of new counsel, and a motion “for the right to appeal 21 and be heard” in his state court criminal case, but he has not had a “motion hearing,” 22 although, “[b]y procedure a motion shall be heard in 10 days.” 23 In Count Two, Plaintiff alleges that on April 7, 2020, he filed a motion for a new 24 attorney to be appointed “to [his] habeas corpus hearing” in his state court criminal case, 25 but no new counsel has been appointed and he has been “illegally incarcerated for 156 26 days[,] with a motion filed for 35 days for a[] habeas corpus hearing.” 27 In Count Three, Plaintiff asserts that on May 11, 2020, he had an “illegal attorney 28 visit” with his attorney at the Legal Defender’s Office. He contends that he filed a motion 1 for new counsel on April 7, 2020, but the attorney has represented him in three “illegal 2 court hearings” and has “failed to bring a just defense in [his] illegal case.” 3 In Count Four, Plaintiff alleges the undersigned stated in a prior order in this case 4 that CV 20-00598-PHX-MTL (ESW) is closed. Plaintiff contends: 5 [T]he Court[’]s error was the civil action case of habeas corpus is case 6 CV-20-00774-PHX-MTL (ESW). 7 [T]he federal courts had Judge Liburdi presiding over case 20-CV00598-PHX-MTL (ESW) which was a[] criminal matter of habeas 8 corpus before conviction. There was no civil complaint filed with the 9 writ of habeas corpus.” 10 Since the federal court[’]s dismissal of the criminal case before a[] civil judge who ruled on a[] criminal habeas corpus case and [11] dismissed the case as a civil action. [12] [T]he Plaintiff filed civil actions under the civil case no. of that action. [13] [T]he federal courts gave the same case a new civil number to hide 14 the facts a civil judge presided over and dismissed a[] criminal action[] that later became a civil action lawsuit. [15] 16 IV. Failure to State a Claim 17 First, under the Eleventh Amendment to the Constitution of the United States, a 18 state or state agency may not be sued in federal court without its consent. Pennhurst State 19 Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040 , 1045 20 (9th Cir. 1989). Furthermore, “a state is not a ‘person’ for purposes of section 1983.” 21 Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted). 22 Therefore, the Court will dismiss Defendant State of Arizona. 23 Second, the Maricopa County Sheriff’s Office is not a proper defendant because it 24 is a “non-jural entity.” Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir. 2015) (citing 25 Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010)). In Arizona, 26 the responsibility of operating jails and caring for prisoners is placed by law upon the 27 sheriff. See Ariz. Rev. Stat. §§ 11-441 (A)(5), 31-101. A sheriff’s office is simply an 28 administrative creation of the county sheriff to allow him to carry out his statutory duties 1 and is not a “person” amenable to suit pursuant to § 1983. Accordingly, the Court will 2 dismiss Defendant MCSO. 3 Third, any claim against a federal actor arises under Bivens v. Six Unknown Named 4 Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), not § 1983. See Martin v. 5 Sias, 88 F.3d 774, 775 (9th Cir. 1996) (“Actions under § 1983 and those under Bivens are 6 identical save for the replacement of a state actor under § 1983 by a federal actor under 7 Bivens.” (quoting Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991))). However, a 8 remedy does not exist under Bivens against the United States because a Bivens action is 9 only available against federal officers, not against the United States or agencies of the 10 federal government. FDIC v. Meyer, 510 U.S. 471, 484-86 (1994). Thus, the Court will 11 dismiss Defendant United States. 12 Fourth, the issues in Counts One and Two relate to the trial court’s apparent delay 13 in ruling on Plaintiff’s motions in his criminal case. But “deciding when to decide a case, 14 no less than deciding the case itself, is a judicial act for which a judge is absolutely 15 immune.” Lowe v. Letsinger, 772 F.2d 308, 312 (7th Cir. 1985). Moreover, the abstention 16 doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents a federal court in most 17 circumstances from directly interfering with ongoing criminal proceedings in state court. 18 “Only in the most unusual circumstances is a defendant entitled to have federal 19 interposition by way of injunction or habeas corpus until after the jury comes in, judgment 20 has been appealed from and the case concluded in the state courts.” Drury v. Cox, 457 21 F.2d 764, 764-65 (9th Cir. 1972). Special circumstances occur “[o]nly in cases of proven 22 harassment or prosecutions undertaken by state officials in bad faith without hope of 23 obtaining a valid conviction and perhaps in other extraordinary circumstances where 24 irreparable injury can be shown.” Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980) 25 (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)). Plaintiff has failed to show special or 26 extraordinary circumstances indicating that he will suffer irreparable harm if this Court 27 abstains from hearing his claims until after he has a chance to present them to the state [28] 1 courts. See Younger, 401 U.S. at 45-46 ; Carden, 626 F.2d at 83-84 . These are issues that 2 should be raised in his criminal case, not here. 3 Fifth, the issue in Count Three relates to Plaintiff’s public defender. A prerequisite 4 for any relief under 42 U.S.C. § 1983 is a showing that the defendant has acted under the 5 color of state law. An attorney representing a criminal defendant does not act under color 6 of state law. See Polk County v. Dodson, 454 U.S. 312, 325 (1981); see also Szijarto v. 7 Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (per curiam) (“[A]n attorney, whether retained 8 or appointed, does not act ‘under color of’ state law.”). 9 Sixth, the issue in Count Four relates to the undersigned’s ruling in the May 1, 2020 10 Order. However, judges are absolutely immune from § 1983 and Bivens suits for damages 11 for their judicial acts except when they are taken “in the ‘clear absence of all jurisdiction.’” 12 Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335 , 13 351 (1871)); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Against federal 14 judges, absolute immunity also “extends to actions for declaratory, injunctive and other 15 equitable relief.” Mullins v. United States Bankr. Ct. for the D. of Nev., 828 F.2d 1385 , 16 1394 (9th Cir. 1987). An act is “judicial” when it is a function normally performed by a 17 judge and the parties dealt with the judge in his or her judicial capacity. Stump, 435 U.S. 18 at 362; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990). 19 Seventh, Plaintiff’s assertions in Count Four are incorrect. In the document attached 20 to his April 23, 2020 Complaint, Plaintiff sought to combine this case “with case CV-2021 00598-PHX still pending.” But that case was not pending; Judgment was entered on March 22 30, 2020. And Caraffa v. Arizona, CV 20-00598-PHX-MTL (ESW), was not a criminal 23 action; the United States Supreme Court has “consistently recognized that habeas corpus 24 proceedings are civil in nature.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). 25 . . . . 26 . . . . 27 . . . . 28 . . . . ITIS ORDERED: 2 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 6) is granted. 3 (2) As required by the accompanying Order to the appropriate government 4) agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 5 | of $5.00. 6 (3) The First Amended Complaint (Doc. 5) is dismissed for failure to state a 7 | claim pursuant to 28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment 8 | accordingly. 9 (4) The Clerk of Court must make an entry on the docket stating that the 10 | dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915 (g). 11 (5) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915 (a)(3) 12 | and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 13 | of this decision would be taken in good faith and certifies that an appeal would not be taken 14 | in good faith for the reasons stated in the Order and because there is no arguable factual or 15 | legal basis for an appeal. 16 Dated this 27th day of May, 2020. [17] Michael T. Sibude Michael T. Liburdi 20 United States District Judge