Stewart v. Arizona, State of

1 KM 2 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Thomas Stewart, Jr., No. CV 22-00712-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 State of Arizona, et al., 13 Defendants. [14] 15 Pending before the Court are Plaintiff’s First Amended Complaint (Doc. 12) and 16 Motion to Amend (Doc. 14). The Court will grant the Motion to Amend and dismiss the 17 First Amended Complaint and this action. 18 I. Background 19 On April 27, 2022, Plaintiff Thomas Stewart, Jr., who is not confined and is 20 proceeding in forma pauperis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 21 § 1983. In a May 11, 2022 Order, the Court dismissed the Complaint because Plaintiff had 22 failed to state a claim. After receiving multiple extensions of time, Plaintiff filed his First 23 Amended Complaint on December 29, 2022. On January 3, 2023, Plaintiff filed a Motion 24 to Amend (Doc. 14). 25 II. Motion to Amend 26 In his Motion to Amend, Plaintiff asks that his request for relief ($14 million in 27 damages) be added to his First Amended Complaint. The Court will grant the Motion and 28 consider the request for relief as part of Plaintiff’s First Amended Complaint. 1 III. Statutory Screening 2 Pursuant to 28 U.S.C. § 1915 (e)(2)(B), the Court is required to review complaints 3 brought by all plaintiffs who are proceeding in forma pauperis and must dismiss a 4 complaint or portion thereof if the plaintiff has raised claims that are legally frivolous or 5 malicious, fail to state a claim upon which relief may be granted, or seek monetary relief 6 from a defendant who is immune from such relief. 7 A pleading must contain a “short and plain statement of the claim showing that the 8 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 9 not demand detailed factual allegations, “it demands more than an unadorned, the10 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 11 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Id. 13 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 14 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, [15] 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 16 that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 18 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 19 experience and common sense.” Id. at 679 . Thus, although a plaintiff’s specific factual 20 allegations may be consistent with a constitutional claim, a court must assess whether there 21 are other “more likely explanations” for a defendant’s conduct. Id. at 681 . 22 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 23 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338 , 342 24 (9th Cir. 2010). A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent 25 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 26 U.S. 89, 94 (2007) (per curiam)). 27 . . . . 28 . . . . 1 IV. First Amended Complaint 2 Plaintiff names the following Defendants in his three-count First Amended 3 Complaint: Maricopa County; Phoenix Police Department, City of Phoenix Police Officer 4 Ryan D. Shell; Irene Hillard; Jere Jackson; State Police Officer J. Reyes; Oasis Re-entry 5 Service Director Anthony Pheffer; The Canyon Apartments; Maricopa County Phoenix 6 Homeless Shelter (CASS);1 CASS Director Lisa Glow, Human Campus Services Director 7 Christine Gardiyer, and Counselors Jane Doe and John Doe; Contract Defense Attorney 8 Vernon Lorenz; Arizona Department of Transportation (ADOT); Pennsylvania 9 Department of Motor Vehicles (DMV); Tanner Terrace Apartments; “Just-a-Center” 10 Owners Rudy and Wendy Doe; and Maricopa County Victim Service. Plaintiff seeks 11 money damages. 12 Plaintiff claims he suffers from spinal stenosis, disc degeneration, and bulging discs, 13 and uses a back brace, cane, pain medications, and spinal injections to manage his 14 condition. On June 18, 2018, Plaintiff was “released from incarceration[] to[] pure hell.” 15 In late December 2019 or spring 2020, Plaintiff received an injection for pain and 16 was taking tramadol, gabapentin, diclofenac, and lidocaine. Plaintiff claims that “despite 17 [his] explanation of his medical conditions, and need for housing, . . . help was not 18 [o]ffered.” Plaintiff claims he did not obtain housing until July 2022 and “received the apt. 19 [him]self.” Plaintiff asserts it took four years for him to find an apartment and “all 20 Defendants must answer for these most malicious[] and sadistic[] treatments . . . .” 21 Plaintiff claims that in March 2021, he was accused of assault, criminal damage, 22 and defacing property, but the charges were dismissed without prejudice in April 2021. 23 Plaintiff alleges the arresting officer, Defendant Ryan, had “no evidence.” 24 In Count One, Plaintiff claims Defendants violated his Sixth, Eighth, and Fourteenth 25 Amendment rights to a speedy trial and impartial jury. Plaintiff also claims he has 26 objectively serious medical needs and “Defendants also have a ‘sufficiently culpable state 27 of mind’ because they knew or should have known . . . of Plaintiff’s conditions and [28] 1 “CASS” is the acronym for Central Arizona Shelter Services. 1 disregarded it.” Plaintiff claims Defendants failed to treat his serious medical needs or 2 provide him housing. 3 In Count Two, Plaintiff alleges Defendants violated his Sixth, Eighth, and 4 Fourteenth Amendment rights. Plaintiff contends “the county was simply wrong for 5 denying Plaintiff the right to a fair and impartial trial, witness against, messed-up [his] life 6 on fraud,” and “perpetrated a fraud upon the courts [by] dismissing the proceeding to avoid 7 speedy trial.” 8 In Count Three, Plaintiff claims Defendants “violated the proscription against the 9 abolishment of slavery,” and Plaintiff’s Fourteenth Amendment due process rights. 10 Plaintiff alleges Defendant Lorenz violated Plaintiff’s Sixth and Fourteenth Amendment 11 rights by knowing “that dismissal was a miscarriage of justice . . . [and] for not object[ing].” 12 Plaintiff claims Defendant ADOT violated the Eighth and Fourteenth Amendments 13 because “privileges ha[ve] been unconstitutional[ly] taken.” Plaintiff asserts the Defendant 14 Pennsylvania DMV violated the Eighth and Fourteenth Amendments because “privileges 15 [have] been taken away being frustrated and or impeded.” 16 Plaintiff claims Defendant Tanner Terrace violated his Eighth and Fourteenth 17 Amendment rights by “dismissing Plaintiff’s apartment on day one, without moving after 18 approval on 3-12-21 due to the fraud charges by Irene; Plaintiff waited almost 9 months 19 for approval.” Plaintiff claims that on April 27, 2021, the prosecutor dismissed all charges 20 without prejudice, but this “m[e]ss-up Plaintiff’s . . . apartment, business, everything gone.” 21 Plaintiff alleges Defendants “Just-a-Center,” Rudy, and Wendy violated his Eighth 22 and Fourteenth Amendment rights “by displaying cruel and unusual punishments and equal 23 protection of the law because ‘you have money, unlike everyone else, that he needs to get 24 an apartment.’” 25 Plaintiff asserts Defendant Maricopa County Victims Service violated the 26 Fourteenth Amendment by failing to adhere “to the Court’s order.” 27 . . . . 28 . . . . 1 V. Failure to State a Claim 2 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 , 3 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 4 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 5 civil rights complaint may not supply essential elements of the claim that were not initially 6 pled. Id. 7 A. Defendants Maricopa County and Maricopa County Victim Services 8 “A municipality may not be sued under § 1983 solely because an injury was 9 inflicted by its employees or agents.” Long v. County of L.A., 442 F.3d 1178, 1185 (9th 10 Cir. 2006). The actions of individuals may support municipal liability only if the 11 employees were acting pursuant to an official policy or custom of the municipality. Botello 12 v. Gammick, 413 F.3d 971, 978-79 (9th Cir. 2005). A § 1983 claim against a municipal 13 defendant “cannot succeed as a matter of law” unless a plaintiff: (1) contends that the 14 municipal defendant maintains a policy or custom pertinent to the plaintiff’s alleged injury; 15 and (2) explains how such policy or custom caused the plaintiff’s injury. Sadoski v. 16 Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant 17 pursuant to Fed. R. Civ. P. 12(b)(6)). Plaintiff has failed to allege facts to support that 18 Defendant Maricopa County maintained a specific policy or custom that resulted in a 19 violation of Plaintiff’s federal constitutional rights and has failed to explain how his injuries 20 were caused by any municipal policy or custom. Thus, the Court will dismiss without 21 prejudice Defendant Maricopa County. 22 Similarly, Plaintiff does not allege that Defendant Maricopa County Victim Services 23 implemented a policy that resulted in violations of Plaintiff’s constitutional rights. At most, 24 Plaintiff alleges an employee of Maricopa County Victim Services failed to comply with a 25 court order. As explained above, a municipality or division of a municipality is not liable 26 based solely on the actions of its employees. The Court will dismiss Defendant Maricopa 27 County Victim Services. 28 . . . . 1 B. Defendant Phoenix Police Department 2 Defendant Phoenix Police Department is a subpart of the City of Phoenix, not a 3 separate entity for purposes of suit. Gotbaum v. City of Phx., 617 F. Supp. 2d 878, 886 (D. 4 Ariz. 2008 ); see Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) 5 (county sheriff’s office is a nonjural entity); see also Vicente v. City of Prescott, 2012 WL 6 1438695, at *3 (D. Ariz. 2012) (city fire department is a nonjural entity); Wilson v. Yavapai 7 County Sheriff’s Office, 2012 WL 1067959 , at *4 (D. Ariz. 2012) (county sheriff’s office 8 and county attorney’s office are nonjural entities). Because Defendant Phoenix Police 9 Department is not a separate entity, it is not capable of being separately sued. Thus, the 10 Court will dismiss Defendant Phoenix Police Department. 11 Moreover, even if Plaintiff had sued the City of Phoenix, his allegations do not 12 support a claim. A municipality may not be sued solely because an injury was inflicted by 13 its employees or agents. Long, 442 F.3d at 1185 . The actions of individuals may support 14 municipal liability only if the employees were acting pursuant to an official policy or 15 custom of the municipality. Botello, 413 F.3d at 978-79 . Plaintiff has failed to allege facts 16 to support that the City of Phoenix maintained a specific policy or custom that resulted in 17 a violation of Plaintiff’s federal constitutional rights and has failed to explain how his 18 injuries were caused by any municipal policy or custom. Plaintiff therefore fails to state a 19 claim against the City of Phoenix. 20 C. Defendants Shell and Reyes 21 Although unclear, Plaintiff appears to allege Defendants Shell and Reyes 22 wrongfully arrested him. Plaintiff does not describe any of the circumstances leading up 23 to his arrest. 24 To state a § 1983 claim for false arrest, Plaintiff must show that Defendants made 25 the arrest without probable cause or other justification. Gravelet-Blondin v. Shelton, 728 26 F.3d 1086, 1097 (9th Cir. 2013). “‘Probable cause exists if the arresting officers ‘had 27 knowledge and reasonably trustworthy information of facts and circumstances sufficient 28 to lead a prudent person to believe that [the arrestee] had committed or was committing a 1 crime.’” Id. at 1097-98 (quoting Maxwell v. County of San Diego, 697 F.3d 941, 951 (9th 2 Cir. 2012)); see also Edgerly v. City & County of S.F., 599 F.3d 946, 953 (9th Cir. 2010) 3 (“To determine whether the Officers had probable cause at the time of the arrest, we 4 consider ‘whether at that moment the facts and circumstances within [the Officers’] 5 knowledge . . . were sufficient to warrant a prudent man in believing that the petitioner had 6 committed or was committing an offense.’” (quoting Beck v. Ohio, 379 U.S. 89 , 91 7 (1964))). “[P]robable cause supports an arrest so long as the arresting officers had probable 8 cause to arrest the suspect for any criminal offense, regardless of their stated reason for the 9 arrest.” Edgerly, 599 F.3d at 954 (emphasis added). “If an officer has probable cause to 10 believe that an individual has committed even a very minor criminal offense in his 11 presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater 12 v. City of Lago Vista, 532 U.S. 318, 354 (2001). 13 Plaintiff’s allegation that he was arrested for false charges is too vague and 14 conclusory to state a claim, and the Court will dismiss the claims against Defendants Reyes 15 and Shell. 16 D. Defendants ADOT and Pennsylvania DMV 17 ADOT and the Pennsylvania DMV are not proper Defendants. Under the Eleventh 18 Amendment to the Constitution of the United States, a state or state agency may not be 19 sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 20 U.S. 89 , 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, “a 21 state is not a ‘person’ for purposes of section 1983. Likewise ‘arms of the State’ . . . are 22 not ‘persons’ under section 1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320 , 23 1327 (9th Cir. 1991) (citation omitted). Therefore, the Court will dismiss Defendants 24 ADOT and Pennsylvania DMV. 25 E. Defendant Lorenz 26 A prerequisite for any relief under § 1983 is a showing that the defendant has acted 27 under the color of state law. An attorney representing a criminal defendant does not act 28 under color of state law. See Polk County v. Dodson, 454 U.S. 312, 325 (1981); see also 1 Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (per curiam) (“[A]n attorney, 2 whether retained or appointed, does not act ‘under color of’ state law.”). Accordingly, 3 Plaintiff has failed to state a claim against Defendant Lorenz and he will be dismissed. 4 F. Private Party Defendants 5 “Like the state-action requirement of the Fourteenth Amendment, the under-color6 of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter 7 how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 , 50 8 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). “[S]tate action requires 9 both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege 10 created by the State or by a rule of conduct imposed by the State or by a person for whom 11 the State is responsible,’ and that ‘the party charged with the deprivation must be a person 12 who may fairly be said to be a state actor.’” Id. (quoting Lugar v. Edmondson Oil Co., 457 13 U.S. 922 , 937 (1982)). 14 Defendants Pheffer, Glow, Gardiyer, John Doe, Jane Doe, Rudy Doe, Wendy Doe, 15 Irene Hillard, Jere Jackson, Oasis Re-Entry Center, CASS, Canyon Apartments, Terrace 16 Apartments, and Just-a-Center are private parties, not state actors. Moreover, although 17 private parties who are jointly engaged with state officials in the challenged action are 18 acting under color of law, Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989), 19 Plaintiff has stated nothing in his First Amended Complaint to suggest that these 20 Defendants were jointly engaged with state officials in the challenged action. Moreover, 21 “merely complaining to the police does not convert a private party into a state actor. Nor 22 is execution by a private party of a sworn complaint which forms the basis of an arrest 23 enough to convert the private party’s acts into state action.” Id. at 1155 (internal citations 24 omitted). Thus, the Court will dismiss Defendants Pheffer, Glow, Gardiyer, John Doe, 25 Jane Doe, Rudy Doe, Wendy Doe, Irene Hillard, Jere Jackson, Oasis Re-Entry Center, 26 CASS, Canyon Apartments, Terrace Apartments, and Just-a-Center. 27 . . . . 28 . . . . 1| VI. Dismissal without Leave to Amend 2 Because Plaintiff has failed to state a claim against any Defendant in his First | Amended Complaint, the Court will dismiss his First Amended Complaint. “Leave to 4} amend need not be given if a complaint, as amended, is subject to dismissal.” Moore v. 5 | Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion 6 | to deny leave to amend is particularly broad where Plaintiff has previously been permitted 7 | toamend his complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351 , 355 8 | (9th Cir. 1996). Repeated failure to cure deficiencies is one of the factors to be considered 9 | in deciding whether justice requires granting leave to amend. Moore, 885 F.2d at 538 . 10 Plaintiff has made multiple efforts at crafting a viable complaint and appears unable 11 | to do so despite specific instructions from the Court. The Court finds that further 12 | opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss 13 | Plaintiff’s First Amended Complaint without leave to amend. 14| ITIS ORDERED: 15 (1) Plaintiff's Motion to Amend (Doc. 14) is granted. 16 (2) | The First Amended Complaint (Doc. 12) is dismissed for failure to state a 17 | claim, pursuant to 28 U.S.C. § 1915e(2)(B), and the Clerk of Court must enter judgment 18 | accordingly. 19 (3) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915 (a)(3) 20 | and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 21} of this decision would be taken in good faith and finds Plaintiff may appeal in forma 22 | pauperis. 23 Dated this 25th day of January, 2023. [24] 25 a 3 [26] 7 _ James A. Teil Org Senior United States District Judge