Pototsky v. Nogales, City of ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Peter Pototsky, No. CV-20-00078-TUC-DCB 10 Plaintiff, AMENDED1 ORDER 11 v. 12 City of Nogales, et al., 13 Defendants. 14 15 On February 20, 2020, the Plaintiff filed this action and asked to proceed without 16 prepayment of fees. He does not file the form for proceeding in forma pauperis but attached 17 a Minute Entry form the Nogales City Court appointing him counsel in a criminal 18 proceeding. Plaintiff asserts that he is currently unemployed and relies solely on disability 19 payments of less than $20,000 per year. The standards differ between appointing counsel 20 for criminal defendants, who cannot afford the expense of hiring an attorney, and granting 21 in forma pauperis status to cover the cost of the filing fee and service in a civil case. The 22 former decision is made to protect one of the most basic constitutional rights which is the 23 right to be represented by counsel in a criminal proceeding. For the latter, the Court 24 considers whether the action is frivolous or malicious; fails to state a claim on which relief 25 may be granted; or seeks monetary relief against a defendant who is immune from such 26 relief. 28 U.S.C. § 1915e(2) (establishing criteria for dismissing a case even if in forma 27 pauperis status has been granted). Here, the Plaintiff must submit the in forma pauperis 28 1 Amended to delete taking under advisement electronic notices, which have been established. 1 affidavit, Application to Proceed Without Prepaying Fees or Costs, required under 28 2 U.S.C. 1915(a)(1), which may be found on the website for the U.S. District Court, 3 www.azd.uscourts.gov, at the tab for “For Proceeding without an Attorney,” “Forms for 4 Self-Represented Litigants.” The Court notes, without deciding the question of indigency, 5 that the Plaintiff’s alleged income exceeds the 2020 poverty level for a single person, which 6 is $12,760 annually.2 www.aspe.hhs.gov/poverty. 7 As explained above, because the plaintiff seeks in forma pauperis status, the Court 8 screens the Complaint under § 1915e(2). Federal courts are courts of limited jurisdiction 9 and may only adjudicate those cases over which they have subject matter jurisdiction: 10 basically, those cases involving diversity of citizenship or a federal question. Kikkonen v. 11 Guardian Life Ins. Comp.. of America, 511 U.S. 375 (1994). Where there is neither 12 diversity nor a constitutional violation of an individual's rights, this Court has no 13 jurisdiction and must dismiss the case. 14 Section 1915(e) provides for dismissal of a Complaint filed in forma pauperis if the 15 Court is convinced that the action is frivolous. Frivolousness exists if the plaintiff would 16 not be entitled to relief under any arguable construction of law or fact. Neitzke v. Williams, 17 490 U.S. 319, 325 (1989). Factual frivolousness includes allegations that are "clearly 18 baseless," "fanciful," "fantastic," or "delusional." Id. at 327-28. Unlike Rule 12(b)(6), 19 screening pursuant to § 1915 "``accords judges not only the authority to dismiss a claim 20 based on an indisputably meritless legal theory, but also the unusual power to pierce the 21 veil of the complaint's factual allegations and dismiss those claims whose factual 22 contentions are clearly baseless.'" Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting 23 Neitzke, 490 U.S. at 327). Alternatively, legal frivolousness justifies dismissal under § 24 1915(e) where a complaint is based on "an indisputably meritless legal theory...[such as] 25 claims against which it is clear that the defendants are immune from suit, and claims of 26 2 In 2016, the Plaintiff reported that his disability income was $2,100 per month and he had 27 $1,000 income from a rental. He had just stopped working at his job which paid him $5,000. The Ninth Circuit Court of Appeals denied him in forma pauperis status to appeal this 28 Court’s dismissal of Potosky v. United States Border Patrol. (CV 14-2418 TUC DCB (Docs. 79 and 81). 1 infringement of a legal interest which clearly does not exist...." Neitzke, 490 U.S. at 327. 2 Plaintiff's Complaint states that he seeks relief against Keith Barth, a part-time 3 Magistrate, the City of Nogales, the Santa Cruz County Board of Supervisors, and Michele 4 Cardillo for a constitutional violation of 42 U.S.C. § 1983 and 18 U.S.C. § 242. 5 First, section 242 is a criminal statute, making it a crime to, under color of law, 6 subject a person to the deprivation of any federal right, privilege or immunity on account 7 of said person's color or race. Criminal statutes, including 18 U.S.C. § 242, prohibiting the 8 violation of an individual's civil rights on account of a person's color or race, do not provide 9 a private cause of action or basis for civil liability. See Aldabe v. Aldabe, 616 F.2d 1089, 10 1092 (9th Cir.1980) (holding 18 U.S.C. §§ 241-242 provide no private right of action and 11 cannot form basis for civil suit). 12 Section 1983 imposes liability only upon one “who, under color of any statute, 13 ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be 14 subjected, any citizen of the United States or other person within the jurisdiction thereof to 15 the deprivation of any rights, privileges, or immunities secured by the Constitution and 16 laws . . . .” The first inquiry is whether the Plaintiff has been deprived of a right “secured 17 by the Constitution and laws.” Secondly, any such deprivation must result from acts done 18 by a state actor, i.e., a person acting under color of law. Baker v. McCollan, 443 U.S. 137, 19 139–40 (1979). Private individuals and entities not affiliated with a state or municipal 20 government generally do not act “under color of state law.” See Florer v. Congregation 21 Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir.2011) (starting point is: presume 22 conduct by private actor is not state action); Price v. State of Hawaii, 939 F.2d 702, 707– 23 08 (9th Cir.1991) (“[P]rivate parties are not generally acting under color of state law.”) 24 The Plaintiff’s Complaint alleges the factual bases for his constitutional claims as 25 follows. He spoke at a Santa Cruz County Board of Supervisors study session in favor of 26 closing the Justice of the Peace Court in Sonoita, Arizona, and that Barth, the JP, assaulted 27 him at the end of the session. Additionally, the Plaintiff believes that the assault was in 28 retaliation of a complaint the Plaintiff made against Barth to the Commission on Judicial 1 Conduct because the Commission subsequently issued a letter of reprimand to Barth. 2 Plaintiff alleges that “Defendant Barth has a long history of misconduct, filing false charges 3 and “moving on” from one law enforcement agency to another.” Plaintiff alleges that Barth 4 reversed the facts and claimed that Plaintiff assaulted him, and shortly thereafter charges 5 were brought against plaintiff. “Defendants have delayed proceedings with the specific 6 intent to use the legal process to harass and retaliate against Plaintiff for exercising his 7 rights under the Constitution. Defendants have maintained the prosecution in violation of 8 the Six Amendment.” (Complaint (Doc. 1) at 5.) 9 In Plaintiff’s Motion to Proceed without Prepayment of Fees (Doc. 20, Plaintiff 10 describes the assault by Barth as follows: “All three members of the board gave brief 11 speeches that they were in favor of CLOSING the tiny little courthouse. . . . Immediately 12 after the session ended, Barth attempted to block people from exiting the building to 13 address the public. It was at this point that Barth, hearing his job of 12 years was OVER, 14 assaulted Plaintiff.” (Motion (Doc. 2) at 1) (emphasis in original). As noted above, liability 15 under § 1983 depends on Defendant Barth being a state actor, i.e., a JP for Santa Cruz 16 County, acting under the color of law. The Complaint needs to allege facts which support 17 the assertion that Defendant Barth was a state-actor as of the time of the assault. 18 The Complaint does not assert a First Amendment right to freedom of speech claim, 19 but the alleged facts that the assault was in retaliation for filing an ethics complaint, may 20 support one. The facts cannot support a claim of malicious prosecution under the Fourth 21 Amendment or state law, which requires facts showing damages due to a criminal 22 prosecution, which terminated in his favor, with defendant as prosecutor or complaining 23 witness acting without probable cause and with malice.” Bearup v. Bearup, 596 P.2d 35, 24 36 (Ariz. App. 1979). “[T]he existence of probable cause is a complete defense to [a] claim[ 25 ] of...malicious prosecution.” Hockett v. City of Tucson, 139 Ariz. 317, 678 P.2d 502, 505 26 (Ariz. Ct. App. 1983). The favorable termination element for a malicious prosecution claim 27 means the claim cannot be plead until and unless the Nogales City Court proceeding is 28 terminated in favor of the Plaintiff. This “avoids parallel litigation over the issues of 1 probable cause and guilt” and “precludes the possibility of the claimant succeeding in the 2 tort action after having been convicted in the underlying criminal prosecution, in 3 contravention of a strong judicial policy against the creation of two conflicting resolutions 4 arising out of the same or identical transaction.” Heck v. Humphry, 512 U.S. 477, 484 5 (1994); McDonough v. Smith, 139 S.Ct. 2149, 2158 (2019). The favorable termination 6 element is the same for malicious prosecution claims brought under 1983. Heck, 512 U.S. 7 at 486. 8 The Complaint does allege a Sixth Amendment claim, which provides many 9 protections and rights to a person accused of a crime, including the right to a speedy trial, 10 right to counsel, and to confront one’s accuser. The Court assumes that the Plaintiff is 11 attempting to invoke the right to a speedy trial. The Plaintiff has, however, failed to allege 12 any specific facts against any of the Defendants, other than Barth, and there are no facts 13 suggesting the prosecution by the City of Nogales was not independent of Barth. “It is a 14 well-settled principle that the ‘[f]iling of a criminal complaint immunizes investigating 15 officers ... from damages suffered thereafter because it is presumed that the prosecutor 16 filing the complaint exercised independent judgment in determining that probable cause 17 for an accused’s arrest exists at that time.’ ” Harper v. City of Los Angeles, 533 F.3d 1010, 18 1027 (9th Cir. 2008). Prosecutors are absolutely immune from suit for the initiation and 19 pursuit of a criminal prosecution, including presentation of the state's case at trial. Imbler 20 v. Pachtman, 424 U.S. 409 (1976). 21 To the extent the Plaintiff seeks to allege a Sixth Amendment claim related to the 22 ongoing criminal proceeding in Nogales City Court, this Court as noted above is limited in 23 its jurisdiction. This Court is barred by the abstention doctrine from enjoining an ongoing 24 state criminal proceeding. Younger v. Harris, 401 U.S. 37 (1971) (holding that a federal 25 court must abstain). It lacks jurisdiction to review “final judgments of a state court in 26 judicial proceedings,” because only the United States Supreme Court has jurisdiction to 27 review final state court judgments on appeal. Dist. of Columbia Court of Appeals v. 28 Feldman, 460 U.S. 462, 482 (1983); see also Rooker v. Fidelity Trust Co., 263 U.S. 413, 1 415-16 (1923). 2 A federal court “should assume that state court procedures will afford an adequate 3 remedy in the absence of unambiguous authority to the contrary.” Pennzoil Co. v. Texaco, 4 Inc., 4381 U.S. 1, 15 (1987), with this Court having jurisdiction under 28 U.S.C. 2254, to 5 consider a writ of habeas corpus if he were unlawfully incarcerated. 6 The Court finds that the Plaintiff’s Complaint, even construed in the broadest sense, 7 fails to state a claim because it fails to allege any factual basis for federal jurisdiction. An 8 in forma pauperis, pro se litigant should, however, be given an opportunity to amend the 9 compliant to overcome a deficiency unless it is clear that no amendment can cure the defect. 10 See eg., Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970); Noll v. Carlson, 809 F.2d 11 1446, 1448 (9th Cir. 1987), superceded by statute, Lopez v. Smith, 203 F.3d 1122, 1129- 12 1131 (9th Cir. 2000) (determining that a district court retains its discretion to dismiss a pro 13 se prisoner’s in forma pauperis complaint with or without leave to amend under Prisoner’s 14 Litigation Reform Act) 15 “District judges have no obligation to act as counsel or paralegal to pro se litigants” 16 because this would undermine district judges’ role as impartial decisionmakers. Pliler v. 17 Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131, n.13 (declining to decide 18 whether the court was required to inform a litigant of pleading deficiencies under the 19 PLRA, but noting that the pro se litigant, unskilled in the law, is far more prone to making 20 errors in pleading than the person who has the benefit of being represented by counsel) 21 (citing Noll, 809 F.2d at 1448). So, while the Court may not serve as advocate for the pro 22 se litigant nor act as legal advisor, the Court has explained the pleading deficiencies and 23 affords the pro se litigant an opportunity to amend the Complaint. Noll, 809 F.2d at 1448. 24 The Amended Complaint must comport with Rule 8 of the Federal Rules of Civil 25 Procedure which provides that the pleading shall contain “a short and plain statement of 26 the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.8(a)(2). The purpose 27 of Rule 8 is to prevent vague and ambiguous claims and ensure that defendants will be able 28 to frame a responsive pleading. 1 In drafting the Amended Complaint, the Plaintiff must include sufficient factual 2 details so that this Court can determine each claim existing against each Defendant. The 3 Plaintiff must refer by name to particular Defendants, whenever possible, in the body of 4 the Amended Complaint, so that it is possible to determine which Defendant is being 5 charged with responsibility for each particular grievance. Jackson v. Nelson, 405 F.2d 872, 6 873 (9th Cir. 1968). 7 Plaintiff's obligation to provide the “‘grounds’ of his ‘entitlement to relief’ requires 8 more than labels and conclusions, and a formulaic recitation of the elements of a cause of 9 action will not do.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). At the 10 pleading stage, the Plaintiff must allege enough facts, if taken as true, to suggest that a 11 claim exists. This does not impose a probability requirement at the pleading stage, it simply 12 calls for enough facts to raise a reasonable expectation that discovery will reveal evidence 13 to support the claim. Id. at 1966. “[F]actual allegations must be enough to raise a right to 14 relief above the speculative level, on the assumption that all the allegations in the complaint 15 are true even if doubtful in fact.” Id. at 1965. 16 All factual allegations are taken as true and construed in the light most favorable to 17 the nonmoving party, Iolab Corp. v. Seaboard Sur. Co., 15 F.3d 1500, 1504 (9th Cir.1994), 18 and all reasonable inferences are to be drawn in favor of that party as well. Jacobsen v. 19 Hughes Aircraft, 105 F.3d 1288, 1296 (9th Cir.1997). Dismissal is appropriate if the facts 20 alleged do not state a claim that is “‘plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 21 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility is not attained if the facts are 22 merely consistent with the claims. Twombly, 550 U.S. at 545, 557. “Where a complaint 23 pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the 24 line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 25 (quoting Twombly, 550 U.S. at 557). 26 The Court denies the Plaintiff’s Motion for Change of Judge and Venue Transfer to 27 Phoenix. Plaintiff asserts that federal judges in Tucson are too close to be unbiased 28 regarding the allegations he makes against Justice of the Peace Barth. Plaintiff mistakenly 1 asserts that he is suing Judge Tommy Fink, a Santa Cruz County Judge; the Complaint 2 neither names him nor alleges any facts involving him. Regardless, such Demographic 3 proximity is not a reason for all the federal judges in Tucson to recuse and transfer venue 4 to Phoenix. To the extent the Plaintiff complains about this Court’s unfavorable dismissal 5 of a prior case CV 14-2418 TUC DCB, Potosky v. United States Border Patrol, prior 6 unfavorable rulings by a court are equally insufficient to require recusal. To be clear, this 7 Court has the duty and it is within its jurisdiction to decide the Motion to Change Judge 8 and Venue. United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (it has been "held 9 repeatedly that the challenged judge himself should rule on the legal sufficiency of a recusal 10 motion in the first instance"). 11 "The standard for recusal under 28 U.S.C. §§ 144, 455 is ``whether a reasonable 12 person with knowledge of all the facts would conclude that the judge's impartiality might 13 reasonably be questioned.’” Id. at 939. A court’s recusal must be predicated upon 14 extrajudicial conduct rather than on judicial conduct. Disqualifying bias must be a personal 15 bias as distinguished from a judicial one. Id.; Liteky v. United States, 510 U.S. 540, 555- 16 555 (1994). 17 In short, the alleged prejudice must result from an extrajudicial source; a judge's 18 prior adverse ruling is not sufficient cause for recusal. A motion for recusal based entirely 19 on prior adverse rulings is insufficient and will be denied. Mayes v. Leipziger, 729 F.2d 20 605, 607 (9th Cir. 1984). Plaintiff’s charge of bias fails because it is solely related to the 21 Court’s rulings in CV 14-2418 TUC DCB, Potosky v. Border Patrol. The Court finds that 22 no reasonable person with knowledge of all the facts would conclude that the Court’s 23 impartiality might reasonably be questioned. 24 Accordingly, 25 IT IS ORDERED that the Motion for Change of Judge and Venue (Doc. 6) is 26 DENIED. 27 IT IS FURTHER ORDERED that the Plaintiff shall supplement the Motion to 28 Proceed without Prepayment of Fees (Doc. 2) by filing the Court approved Application To 1 Proceed Without Prepaying Fees and Costs. www.azd.uscourts.gov/forms-self- 2 represented-litigants. In the event in forma pauperis status is denied, the Plaintiff shall be 3 directed to pay the filing fee in order to proceed. 4 IT IS FURTHER ORDERED dismissing the Complaint, sua sponte, WITH 5 LEAVE TO AMEND by filing a First Amended Complaint by April 13, 2020. 6 IT IS FURTHER ORDERED that THE AMENDED COMPLAINT MUST BE 7 CLEARLY DESIGNATED AS "FIRST AMENDED COMPLAINT" ON THE FACE OF 8 THE DOCUMENT. The Amended Complaint must state specific allegations against 9 proper Defendant(s), named as Defendant(s); and identify who participated in which 10 activities alleged in the Complaint; and state what injury, if any, Plaintiff suffered as a 11 result of the activities of each Defendant. THE AMENDED COMPLAINT MUST BE 12 RETYPED OR REWRITTEN IN ITS ENTIRETY AND MAY NOT INCORPORATE 13 ANY PART OF THE ORIGINAL COMPLAINT BY REFERENCE. Local Rule 7.1(c). 14 IT IS FURTHER ORDERED that the Clerk of the Court is directed to DISMISS 15 all claims and to close this case, without further notice to the Plaintiff, if he fails to file the 16 First Amended Complaint by April 13, 2020. 17 IT IS FURTHER ORDERED that in the event Plaintiff proceeds with this action, 18 he must follow the Federal Rules of Civil Procedure and the Local Rules of Practice for 19 the U.S. District Court of Arizona (local rules). www.azd.uscourts.gov/local-rules. Plaintiff 20 is instructed to take special notice of Local Rule 7.2 which provides specifics for civil 21 motions, especially subsection (i) which provides that failure to file a timely response, or 22 any other such non-compliance, "may be deemed a consent to the denial or granting of the 23 motion and the Court may dispose of the motion summarily." 24 IT IS FURTHER ORDERED that in the event Plaintiff proceeds with this action, 25 he must comply with the rules of service, Fed. R. Civ. P. 4-6, except to the extent that he 26 is granted in forma pauperis status in which case service of the First Amended Complaint, 27 only, will be performed by the United States Marshal. Plaintiff shall serve upon 28 Defendants or upon their counsel, a copy of every further pleading submitted to the Court. Plaintiff shall include a certificate stating the date a true and correct copy of any document || was mailed to each Defendant or their counsel. The Court will disregard any document 3 || which has not been filed with the Clerk or which fails to include a Certificate of Service. 4 IT IS FURTHER ORDERED that the Plaintiff shall not have any ex parte 5 || communications with this Court, including telephone calls and letters. 6 Dated this 18th day of March, 2020. 7 SS Honorabje David C. But United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _2-