United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
On January 20, 2015, Plaintiff Michael David Johnson, who was then confined in the Maricopa County Lower Buckeye Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a March 3, 2015 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.
On March 5, 2015, Plaintiff filed a Notice of Party's Change of Address, indicating he was no longer in custody, and on May 7, 2015, Plaintiff filed a non-prisoner application to proceed in forma pauperis. In an April 8, 2015 Order, the Court granted Plaintiff's non-prisoner application to proceed and dismissed the Complaint with leave to amend for failure to state a claim.
On May 7, 2015, Plaintiff filed his First Amended Complaint (Doc. 12). The Court will dismiss the First Amended Complaint with leave to amend.
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. § 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.
II. First Amended Complaint
In his two-count First Amended Complaint, Plaintiff sues Darren Hyman, Detective for the Scottsdale Police Department; Alan Rodbell, Chief of Police for the Scottsdale Police Department; and Joe Nichols and Melissa Palopoli, Sergeants for the Scottsdale Police Department, for alleged Fourth and Fifth Amendment violations. Plaintiff seeks punitive damages and costs.
Both Counts are based on the following allegations.
On May 20, 2014, Plaintiff was arrested in Phoenix by Defendant Hyman for violation of an order of protection issued by the Scottsdale City Court. After Plaintiff's arrest, Hyman and Detective Leal conducted a search of Plaintiff's vehicle in Plaintiff's presence. The detectives seized a legal envelope "containing documents, evidence, case notes, research[, ] and strategy for two civil cases [Plaintiff] had against the alleged victim" named in the order of protection. One of these cases was "against the order of protection." Plaintiff informed Hyman of the contents of the envelope, and Hyman inspected it. Plaintiff told Hyman "you should not take that, " but Hyman seized it anyway.
Plaintiff alleges that he was representing himself in the two civil cases and he believes the documents are protected by attorney-client privilege. He further alleges that seizure of these documents "exceeded the requirements of the warrant." According to Plaintiff, the warrant encompassed "indicia of residency, occupancy, cell phones, computer equipment, storage, devices, paper documents [and] all items that relate to the alleged charges." Plaintiff alleges that the documents seized did not contain information related to the charges; his residency was already established when Hyman allegedly visited Plaintiff's apartment manager the week prior to Plaintiff's arrest; and, although item #6 of the warrant asked for documents establishing a relationship between Plaintiff and the alleged victim named in the order of protection, the order of protection and its supporting documentation were enough to establish this relationship.
Plaintiff additionally alleges defects in the way the warrant was procured. He alleges that the warrant request used boiler-plate language from an unrelated case, and "the officer clearly typed over a prior existing search warrant request" because this and other court-order requests related to the warrant "contain[ed] information that is identifiable to other cases with another person's personal information." Plaintiff alleges that Hyman simply typed over prior requests and did not review them to verify the need for all the itemized information before presenting these requests to the judge.
Plaintiff alleges that he was released from custody on May 21, 2014, and while he was awaiting trial on June 23, 2014, he filed paperwork at the Scottsdale City Court, seeking a hearing to challenge the order of protection. At that time, he went to the counter of the Scottsdale Police Department's satellite office and requested the return of his legal documents. Plaintiff alleges that the clerk told him to call the Sergeant. He alleges that he then called Hyman's Sergeant, and she instructed him to call Hyman and told him that "it shouldn't be a ...