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Moreno v. Zavedra

United States District Court, D. Arizona

November 21, 2018

Edgar Moreno, Plaintiff,
v.
Sergeant Zavedra, Defendant.

          ORDER

          CINDY K. JORGENSON, UNITED STATES DISTRICT JUDGE

         Plaintiff Edgar Moreno ("Moreno") Moreno has filed a 2nd Amended Version (Doc. 41) and a Supersedeing (sic) 2nd Amended Version Attachment of Formal Complaint or Complaints (Doc. 42). As it is not clear which of these documents Moreno seeks to submit as his Second Amended Complaint, the Court will collectively review these documents as a Second Amended Complaint (“SAC”). Additionally, Moreno has filed a Formal Complaint for Prosecutorial Misconduct and; or Persecution with Malicious Intent - Omnibus Motion to Amend Claim of Persecution (Doc. 39) and a Motion for Appointment of Counsel (Doc. 40).

         2nd Version Complaints Filed by Moreno

         On or about July 12, 2018, Moreno filed a 2nd Amended Version. This form document states it is a Complaint for Violation of Civil Rights. It includes six pages of the form (Doc. 41), a four page numbered Memorandum (numbers 1-4) (Doc. 41-1), four unnumbered pages (Doc. 41-1), and two additional unnumbered pages (Doc. 41-3). This document also includes additional memorandum-style pages with non-sequential numbers (numbers 10-12, 8-13) (Doc. 41-2).

         On or about July 13, 2018, Moreno filed a Supersedeing (sic) 2nd Amended Version Attachment of Formal Complaint or Complaints (Doc. 42) (“2nd Amended Version Attachment). This filing includes seven numbered pages (numbers 1-7) (Doc. 42). Based on the last sentence of this document, it appears the numbered pages 8-13 from Doc. 41-2 (Doc. 41-2, ECF pages 1-6) belongs at the end of Doc. 42.[1]

         The Clerk of Court has advised the Court that it cannot alternate the pages of the filings without a court order because they were received on separate days. The Court, therefore, will direct the Clerk of Court to re-docket these entries. However, the Clerk of Court will also be directed to retain the current filings because this Order will refer to these documents as currently filed.

         The Court will direct the Clerk of Court to place numbered pages 8-13 from Doc. 41-2 (Doc. 41-2, ECF pages 1-6) after numbered page 7 of Doc. 42 (Doc. 42, ECF page 7 of 7). However, numbered pages 10-12 from Doc. 41-1 (Doc. 41-1, ECF pages 9-11 of 11) clearly should follow Doc. 41-2, p. 2 of 6 (p. 2 of 6 ends with subsection U and Doc. 41-1, p. 0 of 11 starts with subsection V. Therefore, the Clerk of Court shall place Doc. 41-1, pp. 9-11 of 11 between Doc. 41-2, p. 2 of 6, and Doc. 41-2, p. 3 of 6. While this designation will then provide for non-sequential and duplicate page numbers, the content of the pages flows more smoothly. The combined 2nd Amended Version (Doc. 41) and the Supersedeing (sic) 2nd Amended Version Attachment of Formal Complaint or Complaints (Doc. 42) shall be docketed together as a Second Amended Complaint.

         Summary of 2nd Amended Version Complaints

         In his 2nd Amended Version, Moreno alleges Sergeant Zavedra (“Zavedra”), Detective Guy Hudson (“Hudson”), Deputy David Estrada (“Estrada”), and Deputy County Attorney Akers (“Akers”) as defendants. Moreno alleges he was viciously attacked without apparent reason or cause by Zavedra and other unknown official at the Cochise County Jail on March 17, 2017. Moreno asserts he was “shackled from hands and feet, ” which were secured behind his back, while speaking with Justice of the Peace Alma Vildosola. 2nd Amended Version, Memorandum (Doc. 41-1, ECF p. 1 of 11). Moreno alleges he was lifted from his hands and feet while they were tied behind his back. This placed the weight of Moreno's body on his shoulder region, which tore fibrosis inside Moreno's socket. Moreno alleges that the tears and resulting arthritic condition caused by the injury has rendered him incapacitated and he can no longer support himself. Elsewhere in his filings, Moreno asserts the “attack was carried out by Ofc. Zavedra and his subordinates.” 2nd Amended Version, Memorandum (Doc. 41-2, ECF p. 3 of 6). Moreno also asserts he was not given medical attention for his injuries on March 17, 2017. Moreno asserts he was taken to a hospital weeks after the attack.[2]

         Moreno also alleges that he is denied opportunities and the pursuit of happiness when organizations conduct background checks. Such background checks return information regarding a warrant out of Maricopa County as to Edgar Rivera Moreno. Moreno states that the “source, reason, nature, and;or causation of this erroneous information is the official Government data bank.” 2nd Amended Version, Memorandum (Doc. 41-1, ECF p. 3 of 11).

         On a separate page, Moreno lists additional defendants: U.S. Customs Agent Paul Barco, Douglas Arizona Port of Entry, et al., Nogales Arizona Port of Entry, et al., and any and all naturalization, immigration, U.S. Customs, and Homeland Security agents who have detained, harassed and;or arrested Moreno when entering or leaving the country “[d]ue to erroneous official information provided by official data bank.” 2nd Amended Version, Memorandum (Doc. 41-1, ECF p. 5 of 11). Moreno asserts that dates and names of border officials involved can be found in the official data bank and requests this Court to subpoena such information.

         On another separate page, Moreno lists additional defendants: Mr. Levy, Office of the Cochise County Superior Court, Mr. Kevin Oursland, Office of the Cochise County Superior Court, Mr. Akers, Cochise County Attorney, Mr. Michael A. Powell, Cochise County, Brian Mcintyre, Cochise County Attorney, Sara Mansom, Cochise County Attorney, Thomas Holz, Office of the Cochise County Superior Court, Mr. Joel A. Larson, Office of the Cochise County Superior Court, Mr. Estrada, Cochise County Deputy, Mr. Hudson, Cochise County Deputy, Internal Affairs Officer Lomelli, Douglas Police Department, Officer J. Alvarez, Douglas Police Department, Officer L. Guerrero, Douglas Police Department, Mr. McIntire, Cochise County Attorney, [3] and Mr. Powell, Cochise County Attorney.[4]

         Similarly, on a separate page, Moreno lists as plaintiffs: Maria E. Chavez, Andrea Moreno, Sofia Moreno, Edgar Damian Moreno, and Edgar Moreno, Sr. Moreno asserts the additional plaintiffs are collateral victims.

         Moreno alleges he was convinced to plead guilty by Akers (the prosecutor) under false pretenses and threats. Moreno asserts he has been disputing the fact he is Edgar Rivera Moreno since 2005 and that he has never pleaded guilty to any crime of mistaken identity of Edgar Rivera Moreno. Moreno asserts he has provided facial plausibility that Akers, Mr. Conlogue (“the Hon. Conlogue”), Hudson, and Estrada are liable. Moreno states:

(d) Mr. Moreno does know that the deputies conducted the DUI “investigation” under the mistaken identity because initially they did not believe Mr. Moreno when he told them he was not Rivera. This is why we have search warrant SW 2010000032 for Edgar Rivera Moreno.
(e) At some point before writeing (sic) their reports but after delivering Mr. Moreno at the Cochise County jail Estrada and Hudson were informed that in fact Mr. Moreno was not Rivera, as he had been telling them. Mr. Moreno assumes they were informed by Ofc. Lopez whom was working at the jail and had booked Mr. Moreno. During the booking process it was discovered and established by Ofc. Lopez that Mr. Moreno was not Rivera. Prints and physical description were cross referenced with Maricopa County. Finally they believed Mr. Moreno was and is not Rivera.

2nd Amended Version, Memorandum (Doc. 41-2, p. 1 of 6). Moreno asserts he pleaded guilty in this case because did not receive proper representation from Levy. Moreno also asserts the Hon. Conlogue denied Moreno the constitutional right to represent himself. Moreno states that he understands he gave up the right to argue the facts of his case when he pleaded guilty, but asserts the reason and causation for the guilty plea (no valid reason to deny Moreno adequate representation).

         In his 2nd Amended Version Attachment Moreno requests this Court intercede in his state criminal action pursuant to Younger v. Kugler, which allows for federal equitable intervention in a state criminal trial where there is a showing of bad faith or harassment by state official responsible for prosecution. Moreno asserts the state law involved in the criminal proceedings in CR 201800211 is patently violative of express constitutional prohibitions. He asserts he has been charged with a statute that does not exist (A.R.S. § 13-1204(A)(3)(e)). Moreno also asserts an officer known not to be credible gave testimony during the grand jury proceedings.

         Moreno asserts Doyle B. Johnstun (“Johnstun”), [5] Thomas Bennett (“Bennett”), and Ofc. Joseph Zaisck (“Zaisck”) acted callously, maliciously, negligently, and recklessly while working under color of law. Further Jason Linstrum (“Linstrum”) showed contempt and reckless disregard to the weight of the evidence. Moreno asserts that, when the officials realize they have made a mistake, they do and say anything to justify and excuse the arrest.

         Formal Complaint for Prosecutorial Misconduct and; or Persecution with Malicious Intent -Omnibus Motion to Amend Claim of Persecution (Doc. 39)

         In his Formal Complaint for Prosecutorial Misconduct and; or Persecution with Malicious Intent - Omnibus Motion to Amend Claim of Persecution (Doc. 39) (“Omnibus Motion”), Moreno alleges persecution with malicious intent from deputy county attorneys Johnstun, Bennett, and Lindstrom. Moreno summarizes facts presented in CR 201800016 in the Cochise County Justice Court, Douglas Precinct. Moreno disputes the facts that were presented, alleges they were contradictory, and asserts the government could not corroborate or substantiate the allegations against Moreno. Moreno also asserts that court engaged in prosecutorial misconduct with reckless negligence and malicious intent; Moreno further states that court abused its discretion and “has shown no bounds as to how far it will go to make Mr. Moreno guilty.” Omnibus Motion, p. 3. Moreno also asserts that charges have been “initiated, instigated and;or directly perpetrated by the mix-up of identity with [Edgar Rivera Moreno]” in CR 201800044, CR 201800211, and CR 201100283. Omnibus Motion, pp. 5-7. Moreno requests this Court provide a full investigation.

         However, Moreno states that he has been found guilty (albeit with blatant fabrications). Heck v. Humphrey, 512 U.S. 477 (1994) provides that, in order to recover damages for injuries caused by actions whose unlawfulness would render a conviction or imprisonment invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.

         Moreover, Moreno's allegations indicate that, although Moreno disputed those facts, the government presented facts to support the charges in CR 201800016. There is a “‘fundamental policy against federal interference with state criminal prosecutions.'” Kugler v. Helfant, 421 U.S. 117, 123 (1975) (quoting Younger v. Harris, 401 U.S. 37, 46 (1971)). While Younger allows for federal equitable intervention in a state criminal trial where there is a showing of ‘bad faith' or ‘harassment' by state officials responsible for the prosecution, id., at 54, such intervention is appropriate only where:

the state law to be applied in the criminal proceeding is “flagrantly and patently violative of express constitutional prohibitions, ” id., at 53, 91 S.Ct., at 755, or where there exist other ‘extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.' Ibid.

Kugler, 421 U.S. at 123-4. It does not appear this case warrants federal intervention. To any extent Moreno claims officers inappropriately detained him on the basis of incorrect information learned from a law enforcement database, law enforcement agencies may rely on computer databases to establish probable cause if it is reasonable for them to do so. See Herring v. United States, 555 U.S. 135, 146-47 (2009) (declining to apply exclusionary rule because officer's reliance on computer database is reasonable where no evidence of routine or widespread errors on computer database exist); id. at 146 (“In a case where systematic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system.”); Arizona v. Evans, 514 U.S. 1, 17 (1995) (O'Connor, J., concurring) (“Surely it would not be reasonable for the police to rely ... on a recordkeeping system ... that routinely leads to false arrests.”). Here, Moreno has not alleged that the database is not reliable, only that he is frequently mistaken for another person included in the law enforcement database. Moreover, to any extent Moreno is arguing that it is unconstitutional for law enforcement, while pursuing one law enforcement goal, to potentially address alternate or collateral law enforcement goals, the Court disagrees. The Supreme Court has not limited law enforcement in such a manner in other respects. For example, the Supreme Court has stated that its holding “does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to that purpose.” City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000)).

         Additionally, the Court does not find that aggressive prosecution, which presents facts disputed by Moreno, constitutes bad faith or harassment. This Court finds these allegations do not present an extraordinary pressing need for immediate federal equitable relief. The Court will deny this request.

         Motion for Appointment of Counsel (Doc. 40).

         Moreno requests an attorney be appointed to represent him in this matter. He asserts counsel is needed because Moreno cannot afford counsel, he is not emotionally stable enough to present the case in his best interest, and his imprisonment will greatly limit his ability to litigate this complex case. Moreno also asserts that counsel is needed to identify all unknown defendants, present evidence and cross-examine witnesses at trial, and to assess claims and damages.

         The Court may request an attorney to represent a person proceeding in forma pauperis who is unable to employ counsel. 28 U.S.C. § 1915(d). The Court does not have the power to make a mandatory appointment of counsel, but the Court may request assistance from volunteer counsel. Id.; United States v. 30.64 Acres of Land, 795 F.2d 796 (9th Cir. 1986). The Court finds the Application to Proceed in Forma Pauperis previously filed in this case supports a finding that Moreno does not have the resources to hire an attorney.

         In determining whether to request the assistance of an attorney, the Court considers the "likelihood of success on the merits and the ability of the [plaintiff] to articulate [his] claims pro se in light of the complexity of the legal issues involved." Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988), quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (court ...


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