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Almendarez v. Imdorf

United States District Court, D. Arizona

March 5, 2014

Tony Ray Almendarez, Plaintiff,
v.
John Imdorf, et al., Defendants.

ORDER

ROBERT C. BROOMFILED, District Judge.

On August 5, 2013, Plaintiff Tony Ray Almendarez, who is confined in the Maricopa County Fourth Avenue Jail, filed a Complaint in Maricopa County Superior Court, Matter No. CV 2013-010195. In his Complaint, Plaintiff asserted claims of unlawful arrest, malicious prosecution, defamation, illegal search and seizure and due process violations. Plaintiff named two individuals in his Complaint: Phoenix Police Officer John Imdorf and Phoenix Police Detective James Ferree. On October 2, 2013, Defendants Imdorf and Ferree removed the case to federal court based on federal question subject matter jurisdiction. On October 28, 2013, Plaintiff filed a Motion for Leave to File an Amended Complaint along with a lodged proposed Amended Complaint. In an Order dated December 4, 2013, the Court found that removal was proper, ordered that Plaintiff's lodged Amended Complaint be filed as Plaintiff's First Amended Complaint, and dismissed the First Amended Complaint with leave to amend for failure to comply with Rule 8 of the Federal Rules of Civil Procedure.

On December 9, 2013, Plaintiff filed an Amended Complaint (Doc. 8) but did not use the court-approved form. On December 31, 2013, Plaintiff filed a Second Amended Complaint (Doc. 9) using the court-approved form. The Second Amended Complaint supersedes the Amended Complaint. On January 17, 2014, Defendants filed a Motion to Stay/Motion to Dismiss (Doc. 10). The Court will dismiss Defendant Ferree and Counts I and II of the Second Amended Complaint. The Court will not dismiss Count Three and Defendant Imdorf, but will not require Defendant Imdorf to answer Count III at this time. The Court will stay this case and will require Defendant Imdorf to file a notice every 90 days regarding the status of Plaintiff's pending state criminal case. The Court will deny the Motion to Stay/Motion to Dismiss.[1]

I. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. ยง 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. ยง 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

II. Second Amended Complaint

In his Second Amended Complaint, Plaintiff alleges three counts of malicious prosecution, arrest without probable cause, and an unfairly suggestive witness identification procedure. Plaintiff sues Officer John Imdorf and Detective James Ferree of the Phoenix Police Department. Plaintiff seeks compensatory and punitive damages and court fees.

Plaintiff asserts a claim of malicious prosecution in Count I. Plaintiff alleges that on August 23, 2012, Defendant Ferree was a witness during grand jury proceedings and "fabricated and misrepresented facts in the reports" that led to Plaintiff's indictment by the grand jury for first-degree burglary and armed robbery. According to Plaintiff, Ferree's presentation to the grand jury "inculpate[d]" Plaintiff as an accomplice to a crime when the correct facts would merely show Plaintiff "as being present when a crime has been committed[.]" Plaintiff appears to allege that Ferree represented to the grand jury that Plaintiff was the driver of a getaway vehicle when "the reports state the plaintiff was the passenger." Plaintiff also alleges that Ferree "confused material issues when he misrepresented the passenger (which the reports state is the plaintiff) led the police on a foot pursuit, when the reports state the passenger was apprehended without police chasing him on foot." Plaintiff makes further allegations about Ferree presenting evidence that is apparently different from information in reports.

In Count II, Plaintiff alleges that on August 15, 2012, Defendant Imdorf arrested Plaintiff without probable cause. Plaintiff alleges that Imdorf responded to a radio broadcast of two men breaking things inside a house and that the men drove off from the house in a blue car. Imdorf then saw a passenger leave a vehicle "without being provoked by officers" and run off and hop over a brick wall. Imdorf "came into contact with the plaintiff who fit the description in a front yard of a residence and without the plaintiff resisting in any way he failed to read the plaintiff his Miranda rights or investigate him in any way or advise him of the reasons he's being arrested." Imdorf drew his weapon on Plaintiff, ordered him to the ground, and "violently placed him in handcuffs." Plaintiff alleges that Imdorf took him to a crime scene "he wasn't suspected of committing without trying to first gain the plaintiff's permission or ex[]igent circumstances requiring it, which unduly infringed upon the plaintiff's liberty and constitutes an arrest without probable cause because the information in the officer's possession at the time of arrest only barely warranted the officer to conduct an investigatory stop."

In Count III, Plaintiff alleges that on August 15, 2012, Defendant Imdorf subjected Plaintiff "to an unnecessarily and unduly [sic] identification procedure by transferring [Plaintiff] from his place of detention without first attempting to gain his permission or ex[]igent circumstances requiring it to a crime scene that of which he wasn't suspected of committing to be identified by a fearful crying witness under poor visual conditions because the witness wears prescription glasses and was in the back seat of a police cruiser with a security mesh covered window blocking her view from (50) plus feet away[.]" Plaintiff alleges that he was the only suspect in handcuffs and was surrounded by officers who placed Plaintiff behind the vehicle that the witness had just identified as belonging to the suspect she had witnessed in her home. Plaintiff asserts that the witness "was never read any kind of identification card but was told that the police have the person in custody she described." Plaintiff argues that "showing ...


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