Moreno v. Cochise County Jail

          ORDER

          Cindy K. Jorgenson, Judge

         Plaintiff Edgar Moreno ("Moreno") has filed a Formal Complaint (Doc. 16). The Court accepts this “Formal Complaint” as a First Amended Complaint (“FAC”). Additionally, pending before the Court are the Motion to Expedite Case (Docs. 18 and 19)^[1], the Formal Complaint Phoenix Police Department (Doc. 20), the Motion on Time Limitation in Order to Amend Complaint Seeking 30 Day Extension (Doc. 21), Notices (Docs. 22, 25, 26, 33and 35), the Motion for Court to Intervene (Doc. 23 and 24), the Memorandum Re: Formal Complaint (Doc. 27), the Motion to File Documentation to Make Case Stand (Doc. 28), the Motion Requesting Federal Courts Intervention in State Criminal Cases (Docs. 29 and 30), the Motion to Proceed and Provide Copies of All Events Information to All Parties Involved (Doc. 31), the Motion for Status (Doc. 34), the Motion to File Any and All Relevant Documentation (Doc. 36), and the Motion to Amend Claim of Persecution; Formal Complaint for Prosecutorial Misconduct with Malicious Intent (Doc. 37).

         I. Procedural Requirements

         The Court previously screened the original complaint filed in this case. In that screening order, the Court advised Plaintiff:

Plaintiffs must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety and may not incorporate any part of the original Complaint by reference. Plaintiffs may include only one claim per count.

A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

(Doc. 10. at 14). The caption of the FAC appears to omit the names of some parties, see Fed.R.Civ.P. 10(a) (“The title of the complaint must name all the parties[.]”). Indeed, the FAC does not state any plaintiff other than Moreno nor any defendant other than the Cochise County Jail. Although the caption includes the phrase “et al.” as to both plaintiffs and defendants, there is no indication in the FAC who any other parties may be. Moreno's mentioning of specific individuals in other documents (see e.g. Doc. 27-1, p. 1) does not make them a party to the action. The Court accepts the FAC as stating only Moreno and the Cochise County Jail as parties.

         The caption states the document is a complaint “for unnecessarry (sic), mismanaged, and; unresonable (sic) or excessive use of authority, force information, and, or; power[, ] inflicting cruel and unusual punishment[, ] pain and suffering.” (Doc. 16 at 1.) The Court will accept the FAC as seeking to state claims for excessive force, abuse of power, and cruel and unusual punishment.^[2]

         II. Screening Order

         This Court is required to dismiss a case if the Court determines that the allegation of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Therefore, the Court will screen the FAC (Doc. 16).

         Additionally, Moreno has filed supplemental documents which the Clerk of Court has docketed as a Memorandum Re: Formal Complaint (Doc. 27). Moreno has also filed a Formal Complaint Phoenix Police Department (Doc. 20) and a Motion to Amend Claim of Persecution; Formal Complaint for Prosecutorial Misconduct with Malicious Intent (Doc. 37). To any extent Moreno is seeking to state additional claims with the filing of the supplemental documents (Docs. 20, 27, and 37), the Court advises Moreno that all claims must be included in a single complaint. In other words, as Moreno has not stated that he seeks one of the alternate documents to supersede the FAC, the FAC is the operative complaint that will be screened herein.

         As the Court previously stated, the United States Supreme Court has determined that, in order to survive a motion to dismiss for failure to state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its facts.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a complaint need not plead “detailed factual allegations, ” the factual allegations it does include “must be enough to raise a right to relief above the speculative level.” Id. at 555. Indeed, Fed.R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled to relief “rather than a blanket assertion” of entitlement to relief. Id. at 555 n. 3. The complaint “must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right to action.” Id. at 555. Although a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), has not been filed in this case, the Court considers these standards in screening the FAC to determine if Moreno has “nudge[d] [his] claims across the line from conceivable to plausible.” Id. at 570.

         In discussing Twombly, the Ninth Circuit has stated:

“A claim has facial plausibility, ” the Court explained, “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

In sum, for a complaint to survive a motion to dismiss, the non-conclusory “factual content, ” and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Id.

Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009).

         This Court must take as true all allegations of material fact and construe them in the light most favorable to Moreno. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, 457 U.S. 800. Nonetheless, the Court does not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Furthermore, the Court is not to serve as an advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in attempting to decipher a complaint.

         If a court determines that dismissal is appropriate, a plaintiff must be given at least one chance to amend a complaint when a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). Moreover, when dismissing with leave to amend, a court is to provide reasons for the dismissal so a plaintiff can make an intelligent decision whether to file an amended complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987).

         A. Cochise County Jail is a Non-Jural Entity

         “State agencies that may sue and be sued are known as jural entities; non -jural entities are not subject to suit.” Morgan v. Arizona, 2007 WL 2808477, * 8 (D.Ariz.2007) (citations omitted). An action cannot be brought against a state or county agency that lacks the authority to sue and be sued. See, Gotbaum ex rel. Gotbaum v. City of Phoenix, 2008 WL 4628675, *7 (D.Ariz.2008); see also Braillard v. Maricopa County, 224 Ariz. 481, 487, ¶ 12, 232 P.3d 1263, 1269 (App. 2010) (citations omitted) (“Governmental entities have no inherent power and possess only those powers and duties delegated to them by their enabling statutes. Thus, a governmental entity may be sued only if the legislature has so provided.”).

         The Arizona Legislature has not authorized the Cochise County Jail to sue or be sued. Compare A.R.S. § 11-201(A)(1) (counties, through their board of supervisors, are granted authority to sue and be sued). As the Cochise County Jail is a non-jural entity, dismissal is appropriate. See e.g. Gotbaum v. City of Phoenix, 617 F.Supp.2d 878, 886 (D. Ariz. 2011) (dismissing a city police department as a nonjural entity; because associated jural entity was also sued, dismissal will not deprive plaintiffs of remedy to which they are entitled); Payne v. Arpaio, CV09-1195-PHX-NVW, 2009 WL 3756679, *4-5 (D. Ariz. 2009) (dismissing a county sheriff's department and a county health services department as nonjural entities); Austin v. State, CV-08-1222-PHX-LOA, 2008 WL 4368608, *5 (D. Ariz. 2008) (dismissing a state department of juvenile corrections as a nonjural entity); Braillard v. Maricopa County, 224 Ariz. 481, 487, ¶ 12, 232 P.3d 1263, 1269 (App. 2010) (citations omitted) (Governmental entities have no inherent power and possess only those powers and duties delegated to them by their enabling statutes. Thus, a governmental entity may be sued only if the legislature has so provided.). Dismissal with leave to amend to name the associated jural entity is appropriate. Simons v. Maricopa Medical Center, 225 Ariz. 55, 59, 234 P.3d 623, 627 (App. 2010).^[3] Alternatively, Moreno may seek to state 42 U.S.C. § 1983 claims against specific officers. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) (to state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and the alleged deprivation was committed by a person action under color of state law).

         Although Moreno has not alleged civil rights claims against any specific officer, the Court finds it appropriate to discuss the possible claims so Moreno can make an intelligent decision whether to allege § 1983 claims in a Second Amended Complaint. Bonanno.

         B. Ex ...