Newson v. Arizona, State of ( 2023 )

1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rafeal Deshawn Newson, No. CV 22-01191-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER TO SHOW CAUSE 12 State of Arizona, et al., 13 Defendants. 14 15 Plaintiff Rafeal Deshawn Newson,1 who is confined in the Waupun Correctional 16 Institution in Waupun, Wisconsin, has filed a pro se civil rights Complaint pursuant to 42 17 U.S.C. § 1983 (Doc. 1) and paid the filing and administrative fees. The Court will require 18 Plaintiff to show cause, within 30 days of the filing date of this Order, why the statute of 19 limitations does not bar his claims. 20 I. Statutory Screening of Prisoner Complaints 21 The Court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or an officer or an employee of a governmental entity. 28 23 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 24 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 25 relief may be granted, or that seek monetary relief from a defendant who is immune from 26 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 27 A pleading must contain a “short and plain statement of the claim showing that the 28 1 Plaintiff is also known as Marquis Johnson and Marquis Lee Johnson. 1 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 2 not demand detailed factual allegations, “it demands more than an unadorned, the- 3 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 4 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Id. 6 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 7 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 8 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 9 that allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 12 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 13 allegations may be consistent with a constitutional claim, a court must assess whether there 14 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 15 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 16 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 17 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 18 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 19 U.S. 89, 94 (2007) (per curiam)). 20 II. Complaint 21 In his eight-count Complaint, Plaintiff sues the State of Arizona; the Governor of 22 Arizona; the Arizona Department of Corrections, Rehabilitation and Reentry (ADC) 23 “Warden of Prisoners”; Maricopa County; the Maricopa County Attorney’s Office 24 (MCAO); Maricopa County Attorneys Gayle Cochran, Cindy J. Winters, and Alan 25 Davidson; the Honorable Ruth H. Hilliard; the Honorable Michael Cruikshank; the 26 Maricopa County Sheriff’s Office (MCSO); the Pima County Sheriff’s Department 27 (PCSD); Pima County Sheriff Deputies 1 and 2; and the Chief Executive Officer of Pfizer 28 Pharmaceutical Company. Plaintiff asserts claims of fraud, purportedly in violation of the 1 Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments and article 1, section 2 10 of the United States Constitution. He seeks monetary relief in the amount of 3 $18,290,880,000. 4 In Count One, Plaintiff alleges that in on March 20, 1999, Arizona law enforcement 5 officers approached him and took him to a police substation in Glendale. Plaintiff was told 6 he had the right to remain silent, and he did so. Police officers told him that his name was 7 Marquis Johnson, and he was transferred to the Madison Street Jail and booked under the 8 name Marquis Johnson. Subsequently, Plaintiff was convicted and sentenced to a 19.5- 9 year term of imprisonment under his alias, Marquis Johnson, although the State of Arizona 10 “knew [his] real name” on April 27, 1999, when Wisconsin officials “sought [him] on 11 unrelated charges.” 12 Plaintiff alleges, “The fact and question remained” that if there was no Social 13 Security number that matched the name Marquis Johnson “as well as the body, how did 14 the federal government release monies for over 17 years and 4 months” that he spent in 15 Arizona custody, “or a trust fund account (i.e., with money transactions, capital and 16 interest) being actively used, or how was federal/state taxes executed for so long under a 17 fake name using [Plaintiff] as security.” Plaintiff asserts Defendant State of Arizona was 18 represented by Defendants Maricopa County, MCAO, Cochran, Winters, and Davidson in 19 his criminal proceeding. He claims Defendant Hilliard “knew this name was fake,” as the 20 county attorneys had mentioned, but she still conducted a trial. 21 In Count Two, Plaintiff alleges that on March 21, 1999, the day after his arrest, he 22 was taken to an initial appearance in Maricopa County Superior Court. No criminal 23 complaint or arrest warrant existed because he was “allegedly apprehended without any 24 complaint filed.” Plaintiff remained detained although Defendant State of Arizona, 25 represented by Defendants Maricopa County, MCAO, Cochran, Winters, and Davidson, 26 knew no criminal complaint was filed. 27 In Count Three, Plaintiff alleges that no criminal complaint was filed within 48 28 hours of his initial appearance on March 21, 1999. Plaintiff was detained in the Madison 1 Street Jail when Defendant State of Arizona, represented by Defendants MCAO, Cochran, 2 and Winters “took the casefile to the 231GJ325 grand jury panel without a criminal 3 complaint being initially filed first.” Only Phoenix Police Department report DR#90- 4 447776 was “acknowledged.” The grand jury indicted Plaintiff on March 26, 1999. 5 Defendant Hilliard conducted a jury trial, convicted, and sentenced Plaintiff “without [his] 6 release” from the MCSO, pending further postponement of preliminary hearings. 7 In Count Four, Plaintiff alleges that in April 1999, he was sent a supervening 8 indictment, but he did not receive any grand jury transcripts. Plaintiff asked his public 9 defender if he had the transcripts, and he replied via letter, “I never had them, and never 10 requested them.” In 2003, the Clerk of the Maricopa County Superior Court sent Plaintiff 11 a court index docket for appellate purposes. There was no record that the grand jury 12 transcripts had been filed. In 2009, Plaintiff wrote to the Clerk of the Maricopa County 13 Superior Court and requested another court index docket, but there again was no record 14 that the grand jury transcripts had been filed. In 2010, Plaintiff again corresponded with 15 the Clerk, and he was sent another court index. This time, the 2010 index read, “Grand 16 jury transcripts were filed on April 30, 1999.” Plaintiff asked the Clerk’s Office who had 17 made the entry. The employee who had made the entry was no longer employed by the 18 Clerk’s Office. Plaintiff did not receive the grand jury transcripts until January 2019. 19 In Count Five, Plaintiff alleges that in April 1999, while he was in custody in 20 Maricopa County, the State of Wisconsin “sought” Plaintiff under the Uniform Criminal 21 Extradition Act. Plaintiff attended three fugitive of justice hearings during which 22 Wisconsin presented an unfiled 1996 criminal complaint and felony warrant and an 23 authorization for extradition. Because Wisconsin officials did not have a governor’s 24 rendition warrant, Plaintiff was not extraditable. On July 10, 2000, while Plaintiff was in 25 custody at the Arizona State Prison Complex-Tucson, he was transported to Pima County 26 Superior Court and appeared before Defendant Cruikshank. Wisconsin officials “sought” 27 Plaintiff pursuant to Article IV of the Interstate Agreement on Detainers (IADA). The 28 IADA required that a criminal complaint from the “party/demanding state” be pending. 1 The 1996 criminal complaint was not filed. Plaintiff claims the State of Arizona 2 “participated in Wisconsin kidnapping [him] when Arizona ordered and allowed 3 Wisconsin to extradite [him], based on the faxing, the use, and action on fraudulent 4 documents.” 5 In Count Six, Plaintiff alleges that he was scheduled for release from prison in 6 Arizona on July 5, 2016. That day, Plaintiff was taken to intake to be released. Correctional 7 officers told Plaintiff that two PCSD deputies were there to pick up Plaintiff on a “courtesy 8 hold” for Milwaukee County, Wisconsin. Plaintiff “refused” and was warned that they 9 would use whatever force was necessary to “get [him] to comply.” Plaintiff was “roughly 10 cuffed” and placed in a PCSD vehicle. Plaintiff was “kidnapped” to the Pima County Adult 11 Detention Center and remained in “the hole/restrictive housing” for four days. 12 “Federalize[d] private extradition agents” arrived at the jail to transport Plaintiff “around 13 the country” for 18 days, with stops at multiple county jails. Plaintiff later learned that 14 there was no offer for temporary custody transfer order to execute the “human trafficking 15 of [his] person.” 16 In Count Seven, Plaintiff alleges that in 2005, while he was in custody at ASPC- 17 Florence Central Unit, he received recreation in an eight-foot by eight-foot metal cage in 18 120-degree weather. Prisoners usually only have two hours or less in the cage for 19 recreation, but that day, Plaintiff was “stuck” with other prisoners for more than four hours. 20 The water in his water bottle was “ration[ed]” for two hours. When officers finally arrived, 21 Plaintiff was “laid out.” The officers told him they were taking him to the medical unit. 22 Medical staff put Plaintiff on an EKG machine, gave him water, and placed cool packs on 23 his body. Plaintiff was told his blood pressure was dangerously high and was given 24 hydrochlorothiazide. Plaintiff was not told how to take the drug. 25 Subsequently, Plaintiff’s blood pressure was still high, and he was given Enalapril, 26 which is used for hospitalized heart attack patients. Plaintiff was not monitored or 27 hospitalized and had “many bad reactions/side effects, along with other issues,” for which 28 psychiatry staff prescribed him Prozac. Plaintiff was finally told to take the “water pill” in 1 the morning and was told that his cholesterol was high. 2 In 2008, Plaintiff requested a natural way to lower his cholesterol, such as fish oil. 3 The State of Arizona and prison medical staff told Plaintiff they did not provide that 4 treatment. In 2015, the medications Plaintiff had been taking were taking a toll on his 5 body. Plaintiff “wrote and complained to” medical staff about “30 to 40 different side 6 effects, bad reactions, and injuries” he had suffered from taking the medications. A nurse 7 practitioner (NP) met with Plaintiff because Plaintiff had briefly stopped taking all his 8 medications after he experienced his “throat closing,” shortness of breath, dizziness, and 9 fainting. The NP put Plaintiff on a four-week plan to take all his medications. 10 “Days into the plan,” Plaintiff began having the same “bad reactions.” He did not 11 see the NP for two weeks. When Plaintiff saw the NP, he explained that the four-week 12 plan did not work. The NP responded that she did not remember a four-week plan. The 13 visit was “cut short” because Plaintiff argued with the NP and shouted at her, “you 14 assaulted me with those drugs, you are a fraud!” 15 Subsequently, Pfizer Pharmaceutical Company admitted that Lipitor and its 16 generics were “bad drugs.” The State of Arizona and prison medical staff discontinued 17 prescribing Lipitor. Plaintiff requested fish oil or some other form of medication for his 18 high cholesterol and was told to seek alternative treatment but was not told “what that 19 alternative treatment was.” The State of Arizona stopped using Lipitor without providing 20 an alternative, without informing him of the discontinuation, and without warning him of 21 the dangers of Lipitor. 22 In Count Eight, Plaintiff alleges that during his incarceration from 2005-2016, the 23 State of Arizona contracted with Pfizer Pharmaceutical Company to provide Plaintiff 24 Lipitor. Pfizer “had its counsels, doctors, and agents market its drugs” to the State of 25 Arizona and prison medical providers. Medical staff ordered Plaintiff to take Lipitor, 26 which caused three dozen negative reactions. According to Plaintiff, Pfizer “conspired” 27 with the State of Arizona to monopolize the drug market in Arizona prisons. 28 . . . . 1 III. Failure to State a Claim 2 Failure to state a claim includes circumstances where a defense is “complete and 3 obvious from the face of the pleadings.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th 4 Cir. 1984), abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989). In 5 the absence of waiver, the Court may raise the defense of statute of limitations sua sponte. 6 See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993); see also Hughes 7 v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 8 U.S.C. § 1915(e)(2)(B)(i) of prisoner’s time-barred complaint). 9 The applicable statute of limitations in an action under 42 U.S.C. § 1983 is the forum 10 state’s statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 11 276 (1985). The Arizona statute of limitations for personal injury actions is two years. See 12 Ariz. Rev. Stat. § 12-542(1). 13 Accrual of § 1983 claims is governed by federal law. Wallace v. Kato, 549 U.S. 14 384, 388 (2007). Under federal law, a claim accrues when the plaintiff “knows or has 15 reason to know of the injury that is the basis of the action.” Pouncil v. Tilton, 704 F.3d 16 568, 574 (9th Cir. 2012); Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 17 1998). Thus, to be timely, Plaintiff’s claims must have accrued no more than two years 18 before his Complaint was filed on July 15, 2022. 19 Plaintiff’s claims arise from events that allegedly occurred in between 1999 and 20 2016. Thus, it appears Plaintiff’s claims are barred by the statute of limitations. In an 21 abundance of caution, however, the Court will permit Plaintiff an opportunity to show 22 cause, in writing, why the statute of limitations does not bar his claims. Plaintiff’s response 23 to this Order shall be limited to this issue and must be filed within 30 days of the date this 24 Order is filed. 25 IV. Warnings 26 A. Address Changes 27 Plaintiff must file and serve a notice of a change of address in accordance with Rule 28 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this 2| action. 3 B. Possible Dismissal 4 If Plaintiff fails to timely comply with every provision of this Order, including these 5 | warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 6| at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court). 8) ITIS ORDERED: 9 (1) ‘Plaintiff is ORDERED TO SHOW CAUSE, in writing, within 30 days of 10 | the date this Order is filed, why this case should not be dismissed as barred by the statute 11 | of limitations. Plaintiff’s written response shall be limited to this issue only. 12 (2) If Plaintiff fails to file a response to this Order to Show Cause within 30 13 | days of the date this Order is filed, the Clerk of Court must enter a judgment of dismissal 14 | of this action without further notice to Plaintiff. 15 Dated this 22nd day of March, 2023. 16 17 a 3 18 19 _ James A. Teil Org Senior United States District Judge 20 21 22 23 24 25 26 27 28