United States District Court, D. Arizona
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 ...