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Parks v. Montgomery

United States District Court, D. Arizona

January 13, 2015

Damiano Vidal Parks, Plaintiff,
v.
William G. Montgomery, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

On October 27, 2014, Plaintiff Damiano Vidal Parks, who is confined in the Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). Subsequently, on November 11, 2014, Plaintiff filed a First Amended Complaint (Doc. 5) and a second Application to Proceed In Forma Pauperis (Doc. 6). The Court will dismiss the First Amended Complaint with leave to amend.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) will be granted. 28 U.S.C. § 1915(a). Plaintiff's second Application to Proceed In Forma Pauperis (Doc. 6) will be denied as moot. Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. 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. § 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. § 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 )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). Plaintiff's First Amended Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.

Additionally, because an amended complaint supersedes the original Complaint, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), the Court will treat Plaintiff's original Complaint as nonexistent. Id. at 1262. Accordingly, any cause of action that was raised in the original complaint and that was not raised in Plaintiff's First Amended Complaint will be considered waived. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

III. First Amended Complaint

In his one count First Amended Complaint, Plaintiff names Maricopa County Attorney William G. Montgomery and Deputy Maricopa County Attorney Kurt N. Mills as Defendants. Plaintiff requests that his pending state criminal charges be dismissed, and seeks monetary relief.

Plaintiff alleges that on September 11, 2014, he was supposed to receive a hearing in Maricopa County Superior Court in an underlying criminal case. According to Plaintiff, it had been agreed upon by himself, his attorney, and the Defendants that if the State's witnesses did not appear at the hearing, that Plaintiff would be released from custody, although his charges would not be dropped or dismissed if the witnesses failed to appear. Plaintiff alleges that the witnesses ...


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