United States District Court, D. Arizona
ORDER
Cindy
K. Jorgenson, United States District Judge.
Pending
before the Court is the Motion to Dismiss Case (Docs. 8 and
16) filed by Defendant Nogales Police Department
(“NPD”). Plaintiff Theodore Heinemann
(“Heinemann”) has filed a response (Docs. 9 and
18). Also pending before the Court are the Motion to Bar
State Refiling Case CF 2019-018 (Doc. 10), the Motion to
Compel (Doc. 13), the Motion to Appoint a Federal Defender
(Doc. 19) and the Motion to Allow Electronic Filing by a
Party appearing without an Attorney (Doc. 20) filed by
Heinemann. NPD has filed responses (Docs. 12 and 17) and
Heinemann has filed a reply (Doc. 11).
Factual
and Procedural Background[1]
On
April 3, 2019, Heinemann filed a Complaint against Defendant
Nogales Police Court Clerks. The body of the Complaint states
one Defendant as the Nogales Police. The Court accepts this
Defendant as the NPD. The body of the Complaint also states a
Defendant as Clerk, with an address which corresponds to
Santa Cruz County Courthouse. The factual allegations state
this Defendant as “Justice Court Clerks precinct
one.” Complaint (Doc. 1-1, p. 1 of 27). The Court
accepts this Defendant as the Clerk of Courts. Heinemann has
also filed three documents entitled “Amended
Complaint.” (Docs. 14, 15, and 21). These documents
indicate Heinemann is amending his Complaint to include the
City of Nogales as a Defendant. These documents also include
additional facts supporting Heinemann's claims. The Clerk
of this Court will be directed to amend the caption to
reflect the Defendants as the NPD, the Clerk of Courts, and
the City of Nogales.
The
Complaint states a Fourth Amendment Violation (Search) is at
issue in this case. Heinemann asserts the NPD violated
Heinemann's right to be free from an unreasonable search.
Heinemann also alleges three defense attorneys conspired with
the prosecutor and raised the issue of Heinemann's mental
competency so the government could avoid a preliminary
hearing based on false medical allegations. Heinemann asserts
this was to hide evidence in case number CF 2019-018 because
the case was based on confidential informants that were on
probation and not credible. Heinemann also alleges his right
to a preliminary hearing was violated because CF 2019-018 was
dismissed without Heinemann having an opportunity to view the
evidence against him. Heinemann alleges NPD has refused to
provide him with video evidence or a record of the 911 call.
He asserts he is suing NPD for a FOIA violation.
Heinemann
also alleges the Clerk of Courts discriminated against him by
not filing his motions correctly in CF 2019-018.
Motion
to Allow Electronic Filing by a Party Appearing Without an
Attorney (Doc. 20)
Heinemann's
motion indicates he has adequate electronic equipment, is
able to comply with the requirements of the ECF
Administrative Polices and Procedures Manual
(“Manual”), and is able to comply with the
privacy policy of the Judicial Conference of the United
States and the E-Government Act of 2002. Although
Heinemann's motion indicates he has not reviewed the
Manual, the Court will grant the request, but direct
Heinemann to review the Manual.
Motion
to Appoint Attorney (Doc. 19)
Heinemann
requests this Court appoint a federal defender to assist him
in this case and in state case number 2019-0000095. Heinemann
has not provided this Court with any authority to appoint an
attorney to assist him in the state action.
As to
the request for an attorney to assist him in this case, the
Court notes it 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). In this case, there is no showing Heinemann
does not have the resources to hire an attorney. Rather, he
has paid the filing fee in this case and has not requested
in forma pauperis status.
Moreover,
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 may ask counsel to represent indigent litigant under
§ 1915 only in "exceptional circumstances").
Heinemann has not provided any information to conclude that
there is a likelihood of success. Rather, at this point, the
pleadings/documents before the Court simply indicate there is
a dispute between the parties. Further, Heinemann's
request does not indicate Heinemann is unable to articulate
his claims in light of the complexity of the claims. Rather,
Heinemann has been able to articulate his claims and
requests.
Indeed,
the Court finds that any difficulty Heinemann may be having
in presenting his claims pro se is not based on the
complexity of the legal issues involved but rather on the
general difficulty of litigating pro se. See generally
Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986).
Furthermore, Heinemann has done a credible job in presenting
motions and filing supporting papers on behalf of his case.
Jackson v. Dallas Police Dept., 811 F.2d 260 (5th
Cir. 1986). Additionally, the Court considers that Heinemann
has made no showing that he has attempted to obtain counsel
on his own. The Court declines to seek volunteer counsel at
this time.
However,
the Court recognizes that, should this matter proceed to
trial, a presentation of the evidence may require greater
skill than Heinemann has or can develop. The Court will deny
the Motion to Appoint Attorney with leave to resubmit. In the
event this matter is scheduled for trial, Heinemann may
resubmit his request. See e.g., Reynolds v. Foree,
771 F.2d 1179 (8th Cir. 1985); Childs v. Duckworth,
705 F.2d 915, 922 (7th Cir. 1983).
Notice
of Motion to Dismiss
In his
response to the Motion to Dismiss (Doc. 9), Heinemann asserts
the defense has not provided him with a copy of the Motion to
Dismiss. While the Court notes the Motion to Dismiss does not
state that a copy of the Motion was mailed to Heinemann,
clearly Heinemann has notice of the Motion or he would not
have filed a response. Nonetheless, the Court will not
address the substantive issue of whether the NPD is a
non-jural entity to afford Heinemann an opportunity to
respond to this argument. Indeed, the Court notes Heinemann
has not included NPD as a Defendant in his Amended
Complaints; he may not oppose this portion of the Motion to
Dismiss.
Because
the Court is directing Heinemann to file a Fourth Amended
Complaint, see discussion infra, the Court
will deny the Motion to Dismiss. Any Fourth Amended Complaint
filed by Heinemann will supersede the original Complaint and
Amended Complaints. If appropriate, Defendants may move to
dismiss any Fourth Amended Complaint filed by Heinemann.
Service
of Process
Although
Heienemann asserts he did not receive a copy of the Motion to
Dismiss from the defense, the Court finds it appropriate to
address the issue of the adequacy of service raised in the
Motion.
When a
defendant challenges service under Fed.R.Civ.P. 12(b)(5), the
plaintiff bears the burden of establishing the validity of
service under Fed.R.Civ.P. 4. Brockmeyer v. May, 383
F.3d 798, 801 (9th Cir. 2004). “Rule 4 is a flexible
rule that should be liberally construed so long as a party
receives sufficient notice of the complaint.”
Direct Mail Specialists, Inc. v. Eclat Computerized
Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (quoting
United Food & Commercial Workers Int'l Union,
AFL-CIO v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.
1984)). However, absent substantial compliance with FRCP 4,
“neither actual notice nor simply naming the defendant
in the complaint will provide personal jurisdiction.”
Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986).
Here,
the returns of summonses indicate that Heinemann served NPD
and the Clerk of Courts by certified mail. The applicable
federal rule requires service upon a state-created
governmental organization by “(A) delivering a
copy of the summons and of the complaint to its chief
executive officer; or (B) serving a copy of each in the
manner prescribed by that state's law for serving a
summons or like process on such a defendant.”
Fed.R.Civ.P. 4(j)(2) (emphasis added). The applicable Arizona
rule states:
(h) Serving a Governmental Entity. If a governmental entity
has the legal capacity to be sued and it has not waived
service under Rule 4.1(c), it may be served by delivering
a copy of the summons and the pleading being served to
the following individuals:
* * * * *
(4) for service on any other governmental entity:
(A) the individual designated by the entity, as required by
statute, to receive service of process; or (B) if the entity
has not designated a person to receive service of process,
then the entity's chief executive officer(s), or,
alternatively, its official secretary, clerk, or recording
officer.
Ariz.R.Civ.P. 4.1(h) (emphasis added). In other words,
service of the summons and complaint by certified mail is
insufficient. The Court finds Heinemann has not substantially
complied with the service requirements.
While
it is clear that Defendant NPD has actual notice of the
action, it cannot be said that Heinemann substantially
complied with Fed.R.Civ.P. 4. See generally Direct Mail
Specialists, Inc. v. Eclat Computerized Techs, 840 F.2d
685 (9th Cir. 1988). However, Fed.R.Civ.P. 4(m) allows the
time to complete service to be extended. The Court finds it
appropriate to afford Heinemann an opportunity to complete
service upon Defendants. Indeed, as discussed infra,
the Court will direct Heinemann to file a Fourth Amended
Complaint; Heinemann will be afforded an opportunity to
complete service of the Fourth Amended Complaint upon
Defendants.
Form
of Complaint
Heinemann
has filed a Complaint naming NPD and the Clerk of Courts as
defendants in this matter. He has further submitted three
Amended Complaints (Docs. 14, 15, and 21).
A
complaint is to contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief[.]" Rule 8(a), Fed.R.Civ.P. 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. Especially where the pleader
is pro se, the pleading should be liberally
construed in the interests of justice. Johnson v.
Reagan, 524 F.2d 1123 (9th Cir. 1975). Indeed, a
"complaint [filed by a pro se plaintiff] 'must be
held to less stringent standards than ...