United States District Court, D. Arizona
ORDER
CINDY
K. JORGENSON UNITED STATES DISTRICT JUDGE
Pending
before the Court are a number of motions filed by Plaintiff
Edgar Moreno ("Moreno").
Procedural
Background
On or
about August 31, 2017, Moreno filed a Complaint for a Civil
Case (Doc. 1). This Court screened the Complaint; the
Complaint was dismissed for failure to state a claim. Moreno
submitted an Amended Complaint. Again, after screening the
Court dismissed the Amended Complaint. Moreno filed a Second
Amended Complaint.[1] The Court screened the Second Amended
Complaint and found Moreno had stated a claim for excessive
force upon which relief could be granted against Defendant
Sergeant Saavedra (“Saavedra”).[2] The Court
dismissed all other claims and defendants (Doc. 43).
The
Clerk of Court provided Moreno with a service packet,
including samples. Moreno submitted a service packet as to
Saavedra. However, Moreno did not complete the form as shown
in the samples. Specifically, Moreno left blank the name and
address of the individual to be served, the type of service,
the number of process to b e served with the form and the
number of parties to served. The U.S. Marshal's Service
returned the process receipt as unexecuted because the form
did not include the required information.
On
November 29, 2018, Moreno filed a Motion to Re-Open Case
(Doc. 45), a Motion Requesting a Written Response to Motion
Requesting an Attorney in this Case (Doc. 46), and a Motion
Demanding Federal Intervention Due to Inhumane Cruel and
Unusual Punishment (Doc. 47). Moreno subsequently filed a
Response to Court Order Filed November 26, 2018 -Motion to
Correct (Doc. 49), a Motion to Clarify as to Warrant for Mr.
Rivera (Doc. 50), a Motion to Redact (Doc. 51), a Motion to
Clarify (Doc. 52), a Motion to Clarify and Show Cause as to
the Denial of Equal Opportunity Employment and the More (Doc.
53), a Response to Court Order Doc. # 43 Motion to Redact
and/or Clarify (Doc. 54), a Motion to Redact and/or Clarify
Court Order Doc. # 43 (Doc. 55), multiple Motions to Redact,
and/or Clarify Court Order Doc. # 43 (Docs. 56, 57, 58, 59
and 60), a Motion to Re-Iterate, Redact and/or Clarify
Particular Relevance Between Cases (Doc. 61), a Motion to
Acknowledge Relevance (Doc. 62), a Motion for Injunction
(Doc. 64), a Motion and Declaration for Entry by Default
(Doc. 65), a Motion to Appoint Counsel (Doc. 66), and a
Motion to Production of Documents and Video Evidence (Doc.
68).
Service
of Process
The
Court will direct the Clerk of Court to again provide Moreno
with a service packet. Moreno's failure to timely return
the completed service packet may result in dismissal of this
action. Further, if Moreno does not either obtain a waiver of
service of the summons or complete service of the Summons and
Amended Complaint on a Defendant within 90 days of the filing
of the Complaint or within 60 days of the filing of this
Order, whichever is later, the action may be dismissed as to
each Defendant not served. Fed.R.Civ.P. 4(m); see
also Fed.R.Civ.P. 41(b); Ferdik v. Bonzelet,
963 F.2d 1258 (9th Cir.) (district court may dismiss action
for failure to comply with any order of the court) (cert.
denied, 506 U.S. 915 (1992)).
Motion
to Re-Open Case (Doc. 45) and Motion Demanding
Federal Intervention Due to Inhumane Cruel and Unusual
Punishment (Doc. 47)
Although
Moreno entitled this document a Motion to Re-Open Case, the
case has not been closed. Further, while the Court dismissed
some claims and defendants, the Court found Moreno had stated
a claim against Saavedra upon which relief could be granted.
In
reviewing the Motion, it appears Moreno is requesting this
Court reconsider its dismissal of some of the claims and
defendants. The Court has discretion to reconsider and vacate
an order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th
Cir. 1994); United States v. Nutri-cology, Inc., 982
F.2d 394, 396 (9th Cir. 1992). “The purpose of a motion
for reconsideration is to correct manifest errors of law or
fact or to present newly discovered evidence. Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985),
cert. denied, 476 U.S. 1171 (1986). However, motions
for reconsideration are disfavored. See generally
Northwest Acceptance Corp. v. Lynnwood Equipment, Inc.,
841 F.2d 918, 925-26 (9th Cir. 1988). Indeed, a motion for
reconsideration is not to be used to ask a court “to
rethink what the court had already thought through - rightly
or wrongly.” Above the Belt, Inc. v. Mel Bohanan
Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983)
(limiting motions for reconsideration to cases where the
court has patently misunderstood a party, where the court has
made a decision outside the adversarial issues presented to
the court, where the court has made an error not of reasoning
but of apprehension, or where there has been a controlling or
significant change in the law or facts since the submission
of the issue to the court); see also United
States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.
1998).
Moreno
asserts if his claims were inconclusive and/or
unsubstantiated, “the Court could and should put an
investigator on the case to either collaborate Mr.
Moreno's claims or disclaim them all together instead of
allowing Mr. Moreno to drown in a sea of injustice.”
Motion (Doc. 35, pp. 2-3). However, as the Court has
previously stated, 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). In screening a
complaint, a court determines if a plaintiff has
“nudge[d] [his] claims across the line from conceivable
to plausible.” Id. at 570. It is not the role
of the Court to serve as an advocate of a pro se
litigant. Noll v. Carlson, 809 F.2d 1446, 1448 (9th
Cir. 1987). Further, while a document filed by a pro se party
is held to less stringent standards, Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (“A document filed
pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”)
(internal quotations and citations omitted), a plaintiff
still must comply with court rules and the Federal Rules of
Civil Procedure. See Jacobsen v. Filler, 790 F.2d
1362, 1364-65 (9th Cir.1986) (holding that pro se parties are
not excused from following the rules and orders of the
court).
Moreno
also asserts the Court erred in stating that
“Moreno's documentation indicates that he has
pleaded guilty to offenses in state court which affirm that
identity.” Motion (Doc. 45, p. 3). Moreno
“demand[s] to know, based on what pretense (exactly)
the Court indicates this false declaration of [] Moreno
assuming another identity.” (Id.). A review of
documents filed by Moreno indicates he has repeatedly
referenced guilty pleas to crimes he has not committed.
See e.g., Motion for Dismissal and/or Acquittal Due
to Pre-Judicial Bias (Doc. 19, p. 4 of 6); Motion to Take
Notice and Redeem (Doc. 33, p. 2). However, the Court agrees
with Moreno that he did not indicate that he has pleaded
guilty to offenses which affirm the wrong identity. The Court
will grant the Motion to Re-Open to the extent the Court will
amend its June 13, 2018, Order to omit that statement.
The
Court considers whether this modification alters the result.
This involves consideration of Moreno's Motion Demanding
Federal Intervention Due to Inhumane Cruel and Unusual
Punishment. Moreno sets forth a history of contacts with law
enforcement and criminal proceedings. He argues federal
equitable intervention is needed because of the bad faith,
harassment, and malicious intent by state officials. The
Court has previously addressed Moreno's request for
intervention. See November 26, 2018 Order (Doc. 43). Moreno
is, in effect, asking the Court to reconsider its prior
Order.
As
thoroughly explained in its November 26, 2018, Order, federal
intervention is not appropriate:
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.
November
26, 2018 Order (Doc. 43, pp. 6-7).
To the
extent Moreno is seeking reconsideration of this conclusion
the Motion to ReOpen and the Motion Demanding Federal
Intervention Due to Inhumane Cruel and Unusual Punishment
will be denied.
Motion
Requesting a Written Response to Motion Requesting an
Attorney in this Case (Doc . 46)
Moreno
requests the Court advise him if it will assist him with an
attorney. The Court has previously denied Moreno's
request to appoint an attorney. Further, the Court advised
Moreno:
[T]he Court advises Moreno that Step Up to Justice
(http://www.stepuptojustice.org/) offers a free, advice-only
clinic for self-represented civil litigants on Thursdays from
1:30 p.m. to 3:30 p.m. If Moreno wishes to schedule a clinic
appointment, he should contact the courthouse librarian, Mary
Ann O'Neil, at MaryAnnO'Neil@LB9.uscourts.gov.
November
26, 2018 Order (Doc. 43, p. 9). The Court will grant this
motion in part as it has again provided information to Moreno
regarding the Step Up to Justice program.
Response
to Court Order Filed November 26, 2018 - Motion to
Correct (Doc. 49)
Moreno
seeks to correct/clarify information previously submitted.
The Court accepts Moreno's statement that Defendant
Sergeant Zavedra's correct name spelling is Nick
Saavedra. The Court will direct the Clerk of Court to modify
the caption to correct Saavedra's name. Additionally, the
Court accepts Moreno's statement that the date he was
injured was March 20, 2017, rather than March 17, 2017. The
Court's November 26, 2018, Order will be AMENDED to
reflect the date of injury as March 20, 2017. November 26,
2018, Order (Doc. 43, p. 3).
As to
Moreno's request for the Court to obtain audio and video
recordings and documents (e.g., of the March 20, 2017,
incident and contact with internal affairs officer), the
Court has previously advised Moreno that it is his
“responsibility, not the Court's, to obtain and
eventually present to the Court (should this matter proceed
beyond the pleading stage) any documentation that Moreno
believes supports his claims.” June 13, 2018, Order
(Doc. 38, p. 10). The Court will again deny this request.
Moreno
also disputes the Court's conclusion that he is capable
of representing himself. Further, he asserts the Court does
not appear to understand the extensiveness and severity of
the issues and circumstances of the case. However, the
multiple filings submitted by Moreno demonstrate Moreno's
ability to present his arguments to the Court.[3] The Court does
not find any basis to reconsider its decision to deny
Moreno's request for the appointment of an attorney.
See November 26, 2018, Order (Doc. 43, pp. 7-9).
Motion
to Clarify as to Warrant for Mr. Rivera (Doc. 50)
Moreno
provides additional information regarding the unreliability
of the database used by law enforcement. He asserts when his
information is entered into the database it returns
information regarding a different individual. Moreno does not
request any relief in this request. The Court will grant this
motion to the extent the Court accepts Moreno's
clarification.
Motion
to ...