United States District Court, D. Arizona
Michael T. Liburdi United States District Judge
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.
Application to Proceed In Forma Pauperis and Filing
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.
Statutory Screening of Prisoner Complaints
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. §
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,
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
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.
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)).
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.
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.
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.
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 ...