Heinemann v. Nogales Police Department

          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 ...