Moore v. Unknown Party ( 2020 )

1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Randy Michael Ki’heem Moore, No. CV 20-01418-PHX-JAT (CDB) 10 Plaintiff, 11 v. ORDER 12 Unknown, et al., 13 14 Defendants. 15 16 On July 16, 2020, Plaintiff Randy Michael Ki’heem Moore, who is confined in a 17 Maricopa County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 18 and an Application to Proceed In Forma Pauperis. In an August 19, 2020 Order, the Court 19 denied the Application to Proceed and gave Plaintiff 30 days to either pay the filing and 20 administrative fees or file a complete Application to Proceed In Forma Pauperis. 21 On August 27, 2020, Plaintiff filed a second Application to Proceed In Forma 22 Pauperis. In a September 30, 2020 Order, the Court granted the Application to Proceed 23 and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave 24 Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the 25 Order. 26 On October 23, 2020, Plaintiff filed his First Amended Complaint (Doc. 9). The 27 Court will dismiss the First Amended Complaint and this action. 28 . . . . 1 I. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 1 II. First Amended Complaint 2 Plaintiff names Maricopa County Jail Legal Services Supervisor Kindell-House and 3 Legal Support Specialists C.A. Marscalce, C. Gerdes, and B1300 as Defendants in the one- 4 count First Amended Complaint. Plaintiff seeks declaratory and injunctive relief and 5 money damages. 6 Plaintiff alleges he was denied access to the courts, in violation of his Eighth and 7 Fourteenth Amendment rights. Plaintiff claims that on July 5, 2020, he requested sections 8 of the Arizona Rules of Criminal Procedure, “16A41.0 Form 8 Notice of right to counsel, 9 and waiver after filing a motion to remove counsel on June 22, 2020.” Plaintiff asserts 10 Defendants were aware of his desire to represent himself and remove counsel in his 11 criminal case, but their policies and customs denied him “the ability to file motions to 12 initiate the process to appeal, to the higher court at the state level, and also denied [him the 13 ability] to file motions for redress or petitions to redress state government, or to retain proof 14 for [his] protection to document in the courts . . . that [he] had requested such relief.” 15 Plaintiff claims Defendants refused to process his motions for change of counsel and forms 16 “to initiate self-representation.” Plaintiff contends “the defendants[’] actions assist the 17 court by allowing the court to use counsel as a tool to hold the plaintiff accountable for the 18 actions of counsel for the denial to access of court,” thus “further leaving the plaintiff’s life 19 and liberty in jeopardy with no documentation for the record or remedy to defend [his] life 20 and liberty to prevent a conviction prior to trial.” 21 III. Failure to State a Claim 22 The right of meaningful access to the courts prohibits officials from actively 23 interfering with inmates’ attempts to prepare or file legal documents. Lewis v. Casey, 518 24 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring petitions or 25 complaints to federal court and not a right to discover such claims or even to ligate them 26 effectively once filed with a court. Id. at 354. The right “guarantees no particular 27 methodology but rather the conferral of a capability–the capability of bringing 28 1 contemplated challenges to sentences or conditions of confinement before the courts.” Id. 2 at 356. 3 As a matter of standing, for an access-to-courts claim, a plaintiff must show that he 4 suffered an “actual injury” with respect to contemplated litigation. Id. at 349. To show 5 actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the 6 defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous claim 7 that he wished to present. Id. at 352-53. 8 Plaintiff’s criminal docket shows that Plaintiff has been consistently filing pro se 9 motions and petitions in his criminal case since June 2020, including multiple motions to 10 change counsel and a petition for state habeas corpus relief.1 Plaintiff has not alleged facts 11 sufficient to show Defendants’ conduct frustrated or impeded from bringing to court his 12 pro se motions and petitions. Accordingly, Plaintiff has failed to state a claim for relief. 13 IV. Dismissal without Leave to Amend 14 Because Plaintiff has failed to state a claim in his First Amended Complaint, the 15 Court will dismiss his First Amended Complaint. “Leave to amend need not be given if a 16 complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc., 17 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 18 particularly broad where Plaintiff has previously been permitted to amend his complaint. 19 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 20 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 21 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 22 Plaintiff has made two efforts at crafting a viable complaint and appears unable to 23 do so despite specific instructions from the Court. The Court finds that further 24 opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss 25 Plaintiff’s First Amended Complaint without leave to amend. 26 . . . . 27 28 1 See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/case Info.asp?caseNumber=CR2020-110840 (last visited Nov. 18, 2020). 1| ITIS ORDERED: 2 (1) Plaintiff’s First Amended Complaint (Doc. 9) and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. 4 (2) The Clerk of Court must make an entry on the docket stating that the 5 | dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 6 (3) | The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) 7 | and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 8 | of this decision would be taken in good faith and finds Plaintiff may appeal in forma pauperis. 10 Dated this 3rd day of December, 2020. 11 12 a 3 13 James A. Teilborg 14 Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28