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Moreno v. Saavedra

United States District Court, D. Arizona

May 29, 2019

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

          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 ...


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