Morales v. Kuhn ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jorge Morales, No. CV-20-00281-TUC-RCC 10 Plaintiff, ORDER 11 v. 12 Cynthia T Kuhn, et al., 13 Defendants. 14 15 On July 1, 2020, Plaintiff Jorge Morales filed a Complaint for Violation of Civil 16 Rights, alleging constitutional violations under 42 U.S.C. § 1983 (Doc. 1), and an 17 Application to Proceed In Forma Pauperis (“IFP”) (Doc. 2). The Court will grant the IFP 18 application and dismiss the Complaint. 19 I. IFP APPLICATION 20 Generally, parties who file an action in federal district court must pay a filing fee. 21 28 U.S.C. § 1914(a). However, 28 U.S.C. § 1915 permits indigent plaintiffs to apply for a 22 fee waiver. Before granting a plaintiff leave to proceed in forma pauperis, the Court must 23 decide whether the litigant is truly unable to pay filing fees. 28 U.S.C. § 1915(a)(1); 24 Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000). Good cause appearing, the Court 25 will grant the Application for Leave to Proceed in Forma Pauperis. (Doc. 2.) 26 II. STATUTORY SCREENING OF IFP COMPLAINT 27 Even if the Court finds that a litigant is unable to pay, it has an additional, 28 statutory obligation to screen a complaint before it may be served. 28 U.S.C. § 1 1915(e)(2). As the Ninth Circuit Court of Appeals has explained, “section 1915(e) not 2 only permits but requires a district court to dismiss an in forma pauperis complaint that 3 fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Additionally, 4 a district court must screen and dismiss actions filed by a plaintiff proceeding in forma 5 pauperis if the action “seeks monetary relief against a defendant who is immune from 6 such relief,” 28 U.S.C. § 1915(e)(2)(B), or fails to plead a cognizable legal theory, 7 Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). 8 District Court screening orders apply the same standard as applied to a Federal 9 Civil Rule 12(b)(6) motion to dismiss. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 10 2012). A complaint under 12(b)(6) must contain a “short and plain statement of the claim 11 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[A] complaint 12 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 13 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 14 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff 15 pleads factual content that allows the court to draw the reasonable inference that the 16 defendant is liable for the misconduct alleged.” Id. The complaint must contain more than 17 “a statement of facts that merely creates a suspicion [of] a legally cognizable right of 18 action.” Bell Atlantic Corp., 550 U.S. at 555. Furthermore, “[t]hreadbare recitals of the 19 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 20 Id. 21 If the plaintiff “fails to state a claim on which relief may be granted,” the district 22 court must dismiss the claim. 28 U.S.C. §1915(e)(2)(B)(ii). But, a “complaint [filed by a 23 pro se litigant] ‘must be held to less stringent standards than formal pleadings drafted by 24 lawyers.’” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Erickson v. 25 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). While dismissal is appropriate if the 26 complaint’s deficiencies cannot be cured by amendment, if the pleading can be remedied 27 through the addition of facts, the claimant should be granted an opportunity to amend a 28 complaint prior to final dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 1 2000). 2 III. FACTUAL ALLEGATIONS 3 Plaintiff’s Complaint arises from a state court contract dispute against Defendants 4 Allstate Fire & Casualty Insurance Company (“Allstate”) and Tucson Federal Credit 5 Union (“TFCU”). (Doc. 1 at 5.) Plaintiff alleges he opened linked accounts at TFCU, 6 where one account was supposed to cover any overdraft charges accrued in the other 7 account. (Id. at 6.) Then, in October of 2014, Plaintiff entered into a car insurance 8 contract with Draper Insurance Services (“Draper”) who handled his Allstate Insurance 9 policy. (Id.) 10 In February 2015, Plaintiff alleges he told TFCU about his recurring premium 11 payment to Allstate. (Id.) But, TFCU had unlinked his accounts, and since his primary 12 account did not have sufficient funds, his insurance premium was unpaid and was now 13 subject to an increased premium. (Id.) Plaintiff alleges that TFCU continued to allow 14 Allstate to withdraw funds from his account even after he asked TFCU to decline the 15 charges, and this allowed Allstate to erroneously remove money from his account. (Id. at 16 7-8.) 17 Plaintiff filed a lawsuit against Allstate and TCFU in state court January 17, 2018. 18 (Id. at 7.) Judge Cynthia Kuhn granted Allstate’s motion to dismiss and awarded Allstate 19 attorney’s fees. (Id.) Judge Kuhn then granted summary judgment on April 26, 2019 in 20 favor of TCFU; this judgment issued on July 16, 2019. (Id.) However, the Arizona Court 21 of Appeals would not consider Plaintiff’s appeal until the state court issued a formal 22 judgment. (Id.) However, the judgment and the state court record was not timely 23 delivered to the state court of appeals, and Plaintiff blames the Pima County Clerk of 24 Court, the judge, and TFCU for the failure. (Id.) Plaintiff claims that because the record 25 and judgment were not filed, his appeal was dismissed. (Id.) Plaintiff also alleges he 26 requested final judgment from the state court, but the court did not issue final judgment 27 until November 28, 2019, long after the court of appeals had set a deadline to submit the 28 judgment. (Id.) This prevented Plaintiff from being able to go to trial and challenge 1 dismissal in the appellate court. (Id.) 2 A review of the state court docket shows the record and judgement was 3 transmitted to the court of appeals on February 2, 2020. Morales v. Allstate Fire & 4 Casualty Ins. Co. (“Morales State Case”), Case No. C20180254 (Ariz. Feb. 11, 2020). 5 Plaintiff’s appeal had already been dismissed on November 20, 2019. Morales v. Allstate 6 Fire & Casualty Ins. Co. (“Morales Appellate Case”), Case No. 2019-04096 (Ariz. App. 7 Nov. 20, 2019). Plaintiff filed the instant federal case on July 1, 2020. (Doc. 1.) 8 IV. DISCUSSION 9 a. PIMA COUNTY SUPERIOR COURT JUDGE CYNTHIA KUHN 10 Plaintiff raises allegations against Judge Kuhn in her official capacity claiming 11 dismissal was improper. (Doc. 1 at 2, 7.) However, judges have immunity from suit for 12 decisions made in their judicial capacity. See Ashelman v. Pope, 793 F.2d 1072, 1075 13 (9th Cir. 1986) (en banc) (“Judges . . . are absolutely immune from damage liability for 14 acts performed in their official capacities.”); see also Partington v. Gadan, 961 F.2d 852, 15 860 n.8 (9th Cir. 1992); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). A complaint is 16 frivolous if it is grounded in “an indisputably meritless legal theory . . . [such as] claims 17 against which it is clear that the defendants are immune from suit.” See Neitzke v. 18 Williams, 490 U.S. 319, 327 (1989). Therefore, Plaintiff’s claim is frivolous and must be 19 dismissed with prejudice. 20 b. CLERK OF THE PIMA COUNTY SUPERIOR COURT GARY ANDERSON 21 Plaintiff’s next claim for relief alleges that the Clerk of the Pima County Superior 22 Court, Gary L. Anderson, failed to timely file the judgment in the state contract case in 23 the appellate court. “Court clerks have absolute quasi-judicial immunity from damages 24 for civil rights violations when they perform tasks that are an integral part of the judicial 25 process.” Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1390 (9th Cir. 1987). Immunity is not 26 lost because the clerk of court makes a mistake or fails to carry out his duties, even when 27 it results in “grave procedural errors.” Id. (quoting Stump v. Sparkman, 435 U.S. 349, 28 359 (1978)). Because Mr. Anderson has absolute quasi-judicial immunity in this instance, 1 and amendment would be futile, the claims against him are dismissed with prejudice. See 2 Neitzke, 490 U.S. at 327. 3 c. ATTORNEYS AND LAW FIRMS 4 Petitioner briefly mentions attorneys and law firms that are involved in this 5 matter.1 It is unclear how these attorneys have committed a violation of Plaintiff’s 6 constitutional rights, Plaintiff alleges only that these law firms somehow delayed the 7 service of his records to the court of appeals. There is no information as to who these 8 attorneys represent, or how their actions or lack thereof are violations of Petitioner’s 9 constitutional rights. Moreover, there is no allegation that these attorneys and law firms 10 are state actors. To avoid dismissal, Rule 8 does not require detailed factual allegations, 11 but “it demands more than an unadorned, the defendant unlawfully-harmed-me 12 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Due to the lack of a factual 13 basis connecting these Defendants to any alleged constitutional violation, these 14 Defendants will be dismissed. 15 d. ALLSTATE FIRE AND CASUALTY INSURANCE CO. AND TUCSON FEDERAL 16 CREDIT UNION 17 “[A] United States District court has no authority to review final judgments of a 18 state court in judicial proceedings.” D.C. Court of Appeals v. Feldman, 460 U.S. 462, 19 482, (1983); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 24-25 (1987); Bates v. Jones, 131 20 F.3d 843, 863 (9th Cir. 1997) (a challenge to a state-court judicial decision is not 21 reviewable by the federal courts, but a constitutional challenge to a state court rule is 22 reviewable); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). The Court cannot 23 relitigate Plaintiff’s substantive claims against Allstate and TFCU. See Feldman, 460 24 U.S. at 482. Plaintiff’s challenge is more appropriately raised in the state appellate court. 25 See id. Since the allegations against these Defendants raise no constitutional issues and 26 review is precluded by this Court, they must be dismissed. 27 1 Plaintiff names the Law Offices of Herman, Goldstein & Woods and Gordon, Rees, Scully, Mensukhani, L.L.P., as well as individual attorneys David L. O’Daniel and 28 Hesam Alagha. (Doc. 1 at 4.) Plaintiff subsequently changed the first named law office to Goldstein, Woods, & Alagha. 1 V. PLAINTIFF’S § 1983 CLAIM 2 Plaintiff claims that dismissing his claims upon summary judgment deprived him 3 of a jury trial, and the subsequent failure to file the state court record in the appellate 4 court resulted in the dismissal of his claims at the appellate level. (Doc. 1 at 7.) 5 Plaintiff has not pleaded facts suggesting that he was denied an opportunity to 6 oppose summary judgment, the motion to dismiss, or any of Allstate or TFCU’s motions 7 for that matter. In fact, the Court takes judicial notice that Plaintiff did oppose both 8 Allstate’s motion to dismiss and TFCU’s summary judgment motion. See Morales State 9 Case, No. C20180254 (Opposition MTD filed July 1, 2019; Opposition to MSJ filed Nov. 10 4, 2019). “The court may judicially notice a fact that is not subject to reasonable dispute 11 because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can 12 be accurately and readily determined from sources whose accuracy cannot reasonably be 13 questioned.” Fed. R. Evid. 201(b). This Court may judicially notice the state court’s 14 orders and judicial proceedings. See Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (judicial 15 notice of another tribunal’s proceedings or orders acceptable). There is also no 16 explanation why Plaintiff believes he was entitled to a jury trial for claims that were 17 dismissed because they failed to raise a genuine issue of material fact entitling him to 18 relief or how dismissal of a non-meritorious claim violated his constitutional rights. 19 The Court also takes judicial notice of the fact that when the Court of Appeals 20 remanded this case back to the superior court to obtain a proper judgment, it also directed 21 Plaintiff to file a status report on the pending judgment. Morales Appellate Case, No. 22 2019-04096 (Order Sept. 10, 2019). Petitioner did not file a status report by the deadline, 23 and his case was dismissed for failure to comply with a court order. Morales Appellate 24 Case, No. 2019-04096 (Order Oct. 2, 2019). The onus was on Plaintiff to keep the state 25 appellate court abreast of the procedural posture of the state case, and his failure to do so 26 caused dismissal, not any action or inaction of Defendants. 27 Plaintiff has not pleaded a viable 42 U.S.C. § 1983 claim against any of the named 28 Defendants. As such, this matter will be dismissed. However, if Plaintiff believes he can 1 overcome the substantial hurdles presented in his Complaint, he may choose to amend. 2 The Court recognizes that Plaintiff is not represented by counsel in this matter. The Court 3 would like to inform him of a possible resource to aid him in litigating his Complaint. 4 Plaintiff is advised that Step Up to Justice (http://www.stepuptojustice.org/) offers a free, 5 advice-only clinic for self-represented civil litigants on Thursdays from 1:30 p.m. to 3:30 6 p.m. If Plaintiff wishes to schedule a clinic appointment, he should contact the courthouse 7 librarian, Mary Ann O'Neil, at MaryAnn_O'Neil@LB9.uscourts.gov. 8 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 9 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 10 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 11 do; (4) how the action or inaction of that Defendant is connected to the violation of 12 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 13 that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). If 14 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 15 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 16 failure to state a claim. Conclusory allegations that a Defendant has violated a 17 constitutional right are not acceptable and will be dismissed. 18 Accordingly, IT IS ORDERED: 19 1. Plaintiff Jorge Morales’ Application to Proceed In Forma Pauperis is GRANTED. 20 (Doc. 2). 21 2. Plaintiff’s Complaint for Violation of Civil Rights alleging constitutional 22 violations under 42 U.S.C. § 1983 is DISMISSED with leave to amend. (Doc. 1.) 23 3. The Hon. Cynthia Kuhn and Pima County Clerk of the Superior Court Gary L. 24 Anderson are DISMISSED WITH PREJUDICE, all other Defendants are 25 DISMISSED WITHOUT PREJUDICE. 26 4. Plaintiff may file a First Amended Complaint within thirty (30) days of the date of 27 this Order in compliance with the terms of this Order. 28 5. If Plaintiff fails to file a First Amended Complaint within thirty (30) days of the 1 date of this Order, the Clerk of Court shall, without further notice, enter a 2 judgment dismissing this case with prejudice. 3 Dated this 4th day of August, 2020. 4 (7 7 Honorable Raner C. Collins g senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-