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Welch v. Prescott Police Department

United States District Court, D. Arizona

October 4, 2019

Ryan William Welch, Plaintiff,
v.
Prescott Police Department, et al., Defendants.

          ORDER

          David G. Campbell Senior United States District Judge

         On July 18, 2019, Plaintiff Ryan William Welch, who is confined in the Yavapai County Detention Center, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and, on August 5, 2019, he filed an Application to Proceed In Forma Pauperis. In an August 8, 2019 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.

         On August 20, 2019, Plaintiff filed his First Amended Complaint. In an August 27, 2019 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order.

         On September 19, 2019, Plaintiff filed two Motions for Written Pleading (Docs. 10, 11.) On September 20, 2019, Plaintiff filed a Second Amended Complaint (Doc. 12). The Court will deny the Motions for Written Pleading and dismiss the Second Amended Complaint and this action.

         I. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

         A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.

         But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

         II. Second Amended Complaint

         Plaintiff is charged in Yavapai County Superior Court case ##P-1300-CR-201900295, P-1300-CR-201900296, and P-1300-CR-201900330[1] with multiple felony and misdemeanor charges.

         In his four-count Second Amended Complaint, Plaintiff sues the State of Arizona, Yavapai County Attorney Sheila Polk, Deputy Count Attorney Josh Fisher, Yavapai County Superior Court Judge John Napper, Attorney Stephanie Willison, Prescott Police Department Detective Frasconie, and Yavapai County Sheriff Scott Mascher. Plaintiff asserts claims related to his pending criminal proceedings, property, and medical care. He seeks release to pretrial services, dismissal of his criminal proceedings, release of his personal property to his power of attorney, and for Defendants Frasconie and Napper to face criminal charges.

         In Count One, Plaintiff alleges the State of Arizona is unlawfully holding him and prosecuting him on false charges. He asserts his current bail is a $25, 000 cash only bond, which he claims is excessive. Plaintiff alleges the felonies he has been charged with do not appear in “[Arizona] Supreme Court dockets.” He asserts that Defendant Polk signed Plaintiff's allegedly false charges as a true bill, and Defendant Fisher is maliciously prosecuting Plaintiff. Plaintiff claims Defendant Napper was presented with a “hardship case, ” that is, letters and testimony regarding Plaintiff's mother passing away. Plaintiff alleges Defendant Napper did not accept Plaintiff's letter and instead sent it to Plaintiff's defense attorney, Defendant Willison. Plaintiff asserts that on September 16, 2019, Defendant Napper “was told” about Plaintiff's mother's death and the date of her funeral, and Plaintiff asked for a temporary release to attend the funeral. Plaintiff claims Defendant Napper denied Plaintiff's request, and Defendant Willison did nothing to present Plaintiff's “hardship case.” Plaintiff alleges that Willison also did not seal motions or letters in the court case file.

         Plaintiff asserts that he filed a motion for a Torres[2] hearing to remove Defendant Willison as his attorney, and on September 16, 2019, Defendant Napper “approved the hearing.” Plaintiff claims the hearing was held the following day, and Defendant Willison was “fired” for not presenting Plaintiff's hardship case. Plaintiff alleges Defendant Napper was “reminded again” that day of Plaintiff's hardship case and his mother's funeral, but Defendant Napper refused to grant Plaintiff relief, resulting in cruel and unusual punishment. As his injury, Plaintiff claims he suffered serious emotional damage and heartache, serious financial damage, loss of all personal property, and slander of his “legal name” and the reputation of his small business.

         In Count Two, Plaintiff alleges Defendant Frasconie seized Plaintiff's cell phone and searched the phone without a warrant. Plaintiff asserts the cell phone was not used as a weapon and appears to claim it therefore could not be searched without a warrant. Plaintiff claims that when he asked for the cell phone to be released to his power of attorney because the cell phone was not evidence, the Prescott Police Department refused to release the cell phone. Plaintiff alleges that, pursuant to Arizona Revised Statutes section 13-3941[3], the Prescott Police Department “has no warrant” to seize and search his property until they obtain the password for the cell phone. As his injury, Plaintiff claims he has been unable to reach out to family and friends or obtain account information from his phone, resulting in being unable to pay for an attorney.

         In Count Three, Plaintiff alleges that Defendant Frasconie interrogated him without making a formal arrest while Plaintiff was in the hospital and under the influence of fentanyl and hydrocodone. Plaintiff asserts that Frasconie took his admissions and statements as an admission of guilt and presented them in court, although Plaintiff was in pain and taking drugs and therefore could not knowingly waive his rights. As his injury, Plaintiff claims his freedom is in jeopardy and the fact that his felony charges do not exist in Arizona Supreme Court dockets is “mysterio[u]s.” In Count Four, Plaintiff alleges that Defendant Mascher has “set forth” incompetent medical staff to address Plaintiff's gunshot wounds. Plaintiff asserts he told medical staff that he still had bullets “floating around” inside him and wanted them taken out. Plaintiff claims he waited two months for an x-ray, despite constantly telling medical staff about the pain he was in. Plaintiff alleges that bullets and fragments were found on an x-ray, but medical staff did nothing to address his condition except give him Tylenol. Plaintiff alleges his complaints of pain were not taken seriously, and as a result, he suffers every day from excruciating pain, and he still needs surgery to remove the bullets and fragments from his body. Plaintiff asserts he needs competent medical staff to address his injuries.

         Plaintiff further claims he has not received any outside recreation time in the past six months, resulting in vitamin D deficiency and severe mental strain. As his injury, Plaintiff alleges he has abdominal hernias because of the path of the bullets and muscle tears where he was shot; he is in constant, excruciating pain every day, making it difficult for him to sleep; and he is starting to go “stir crazy” because he is being held against his will even though he is considered innocent until proven guilty.

         III. Failure ...


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