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Palmer v. State

United States District Court, D. Arizona

December 3, 2019

Donald Ray Palmer, Plaintiff,
v.
State of Arizona, et al., Defendants.

          ORDER

          Michael T. Liburdi United States District Judge

         Plaintiff Donald Ray Palmer, who is confined in the Arizona State Prison Complex-Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss this action.

         I. Application to Proceed In Forma Pauperis and Filing Fee

         The Court will grant Plaintiff's Application to Proceed In Forma Pauperis. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

         II. 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)).

         If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Plaintiff's Complaint will be dismissed for failure to state a claim, without leave to amend because the defects cannot be corrected.

         III. Complaint

         Plaintiff names the State of Arizona and former Arizona Department of Corrections Director Charles L. Ryan as Defendants in his two-count Complaint. Plaintiff seeks declaratory and injunctive relief and money damages.

         Plaintiff alleges that prior to January 1, 1994, Arizona law authorized parole or commutation for an individual convicted of first-degree murder and sentenced to life with the possibility of release. In 1993, the Arizona Legislature eliminated life with parole for all offenses committed on or after January 1, 1994.

         On March 2, 2005, Plaintiff was charged with attempted first-degree murder, drive-by shooting, aggravated assault, and being a prohibited possessor, with an enhancement for a dangerous nature prior conviction. Plaintiff was offered two plea agreements under which he would serve a maximum of 21 years in prison. On the advice of counsel, Plaintiff rejected the plea offer and exercised his right to trial by jury. On March 13, 2007, Plaintiff was convicted of attempted first-degree murder, drive-by shooting, and aggravated assault. Plaintiff alleges he was sentenced to “life with the possibility of parole after 25 years and all sentences in all three counts will concurrent under ...


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