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Francisco v. Navajo Nation Police Department

United States District Court, D. Arizona

June 17, 2015

Gerald Francisco, Plaintiff,
v.
Navajo Nation Police Department, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

On April 7, 2014, Plaintiff Gerald Francisco, who was then confined in the Central Utah Correctional Facility in Gunnison, Utah, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a July 7, 2014 order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to file a complete Application to Proceed on the court-approved form. On July 17, 2014, Plaintiff filed an Application to Proceed In Forma Pauperis using this District's approved form. However, in his cover letter, Plaintiff stated that he was going to be released from prison on November 4, 2014 and provided the address where he would thereafter reside. In a November 19, 2014 order, the Court denied Plaintiff's Application to Proceed In Forma Pauperis because he was no longer in custody and gave Plaintiff 30 days to either pay the filing and administrative fee or file a non-prisoner Application to Proceed in District Court Without Prepaying Fees or Costs.

On November 26, 2014, Plaintiff filed a non-prisoner Application to Proceed in District Court Without Prepaying Fees or Costs. In a January 14, 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 February 12, 2015, Plaintiff filed his First Amended Complaint. In an April 16, 2015 order, the Court dismissed the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the order. On June 1, 2015, the Clerk of Court entered judgment and dismissed this action because Plaintiff failed to file a second amended complaint.

On June 1, 2015, Plaintiff filed a Second Amended Complaint (Doc. 22). The Court will vacate the June 1, 2015 Judgment and direct the Clerk of Court to reopen this case. The Court will further dismiss the Second Amended Complaint and this action.

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 )).

II. Second Amended Complaint

In his bare-bones Second Amended Complaint, Plaintiff sues Navajo Nation Police Department ("NNPD") Chief Leonard Williams and NNPD Sergeant Rob Williams. Plaintiff seeks monetary damages.

In Count One, Plaintiff asserts an excessive force claim and alleges that during his arrest he was "assaulted" by Defendants Leonard Williams and Rob Williams and other NNPD officers. Plaintiff further alleges that Defendant Rob Williams twisted his wrists, broke his right wrist, and he was "slammed onto the asphalt [by] all the officers."

In Count Two, Plaintiff asserts a claim for discrimination and alleges that he "felt" that he was discriminated against by Defendant Rob Williams because Plaintiff is "a colored Native American Indian" and Defendant Rob Williams is "a white Caucasian male." Plaintiff claims that ...


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