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Merrick v. Inmate Legal Services

United States District Court, Ninth Circuit

December 30, 2013

Anthony Merrick, Plaintiff,
v.
Inmate Legal Services, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

On April 4, 2013, Plaintiff Anthony Merrick, who is confined in the Arizona State Prison Complex-Yuma, filed a pro se civil rights Complaint in the Maricopa County Superior Court. On May 30, 2013, Defendants removed the action to this Court. In a August 20, 2013 Order, the Court dismissed the Complaint and gave Plaintiff 30 days to file an amended complaint on the court-approved form.

On August 19, 2013, Plaintiff filed a Motion to Amend Complaint (Doc. 5). On September 5, 2013, Plaintiff filed a First Amended Complaint (Doc. 8). Because Plaintiff was granted leave to amend in the August 20 Order, the Court will deny as moot the Motion to Amend.

On September 5, 2013, Plaintiff also filed an Objection to Removal. The Court will deny the Objection and order Defendant Lillie to answer Count Two of the First Amended Complaint. The Court will dismiss the remaining claims and Defendants without prejudice.

I. Removal

On September 5, 2013, Plaintiff filed an Objection to the Notice of Removal. Plaintiff asks that the Court consider his untimely Objection because he did not understand that he was required to file the Objection in this Court rather than state court. Plaintiff further states that he is opposed to removal because he believes the federal court does not have jurisdiction to consider his state claims.

Title 28 U.S.C. § 1441 authorizes removal of any civil action brought in the state court over which the federal district courts would have original jurisdiction. "Only... actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal district courts have original jurisdiction over all civil actions arising under the Constitution of the United States pursuant to 28 U.S.C. § 1331, including those actions where the plaintiff has requested a remedy under state law for an alleged violation of a federal substantive right. Smith v. Kansas City Title & Trust, 255 U.S. 180, 199 (1921).

"The presence or absence of federal question jurisdiction is governed by the well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392. The plaintiff is the "master of the claim" and may avoid federal jurisdiction by "exclusive reliance on state law." Id. Under the corollary to that rule, however, a state common law claim will be converted into one stating a federal claim where the preemptive force of a federal statute is so extraordinary that it displaces any state law claim in the area.

Plaintiff's original Complaint was filed pursuant 42 U.S.C § 1983. Accordingly, Plaintiff's original Complaint could have been filed in federal court and removal was appropriate. To the extent that Plaintiff raises state law claims, 28 U.S.C. § 1367(a) provides that the district courts have supplemental jurisdiction over state law claims in any civil action in which the district courts also have original federal jurisdiction over all other claims in the case. The Court may therefore exercise supplemental jurisdiction over Plaintiff's state law claims.

II. First Amended Complaint

Plaintiff names the following Defendants in the First Amended Complaint: Maricopa County Sheriff Joseph Arpaio; Inmate Legal Services Carol Lillie; Inmate Legal Services Clerk A. Meyer; Captain J. Baumann; Captain Harmon; Sergeant Rogers; Grievance Sergeant J. Wade; Lieutenant Garcia; Sergeant O'Neal; External Referee James Garitson; and Chaplain Paul.

Plaintiff raises three claims for relief. In Count One, Plaintiff claims his First Amendment rights, rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and rights under Arizona state law were violated when Defendants Baumann and Harmon denied Plaintiff unmonitored, unrecorded phone calls with his clergy, which Plaintiff alleges are "a requirement of his religious practices (confession, spiritual guidance, and counselling.)" Plaintiff claims that Defendants allowed him clergy calls but refused to allow unmonitored, unrecorded calls. Plaintiff was also advised that that he could request his pastor to visit him personally, or clergy that regularly visited the jail could hear his anonymous confession. Plaintiff claims that this was not sufficient because clergy of Plaintiff's faith was not available and Plaintiff needed to speak with his own pastor. Plaintiff grieved the denial and received denials at all levels of review from Defendants O'Neal, Garcia, Wade, Paul, and Garitson. Plaintiff further alleges that Defendant Arpaio "made the policies, procedures, customs and failed to train employees."

In Count Two, Plaintiff claims his First Amendment rights to access to the courts and rights under the Arizona Constitution were violated when Defendant Lille failed to file Plaintiff's Motion for Reconsideration in the Arizona Court of Appeals. Plaintiff states that on October 30, 2012, the Arizona Court of Appeals affirmed his criminal appeal and "stated that a motion for reconsideration could be filed pro-per within time frames under A.R.Cr.P. 31.18(b), which is 15 days." Plaintiff states that he prepared the Motion and, on November 7, 2012, sent it to Inmate Legal Services ("ILS") to be filed. Plaintiff states that he was indigent and could not afford copies or postage. Plaintiff claims that on November 8, 2012, Defendant Meyer returned the Motion, telling Plaintiff that ILS would not process the Motion because Plaintiff was not pro per. Plaintiff filed a grievance on the same date. On November 14, 2012, Defendant Lille responded to the grievance and stated that she had filed Plaintiff's Petition for Review, but never mentioned the Motion for Reconsideration. On November 20, 2012, Sergeant Rogers informed Plaintiff that the Motion was timely filed. On December 6, 2012, Defendant Baumann responded to Plaintiff's grievance appeal by informing Plaintiff that the Motion was timely filed. On January 13, 2013, Plaintiff received a Response from Defendant Wilson stating that it had been discovered Plaintiff's Motion had not been filed and ILS had erred. Defendant Lille then sent Plaintiff a letter stating that she erred in not sending the Motion and that Defendant Meyer was acting pursuant to her direction.

Plaintiff claims that his Motion contained non-frivolous claims that would have resulted in a favorable outcome and he was unable to "correct the court on facts of the case or the law involved." Plaintiff further claims in Count Two that he filed a grievance regarding inadequate legal supplies, but that the grievance was never answered. Finally, Plaintiff alleges that Defendant Arpaio "made jail policies, procedures, customs, and failed to train employees."

In Count Three, Plaintiff alleges the same facts as Count One but claims that "Defendants were acting under Rules, Policies, Procedures and customs to sponsor and enforce what they felt were acceptable religious practices ...


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