G. MURRAY SNOW, District Judge.
Plaintiff Beauford Powell, who is confined in the Fourth Avenue Jail in Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, which the Court dismissed with leave to amend. (Doc. 5.) Plaintiff has filed a First Amended Complaint.
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."
"[A] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally."
Plaintiff alleges three counts for violation of his Fourth and Fourteenth Amendment rights. He sues Phoenix Police Officer Shawn Magness. Plaintiff seeks compensatory relief.
All of Plaintiff's claims are based on the same facts, as follows: on September 11, 2011, Plaintiff was stopped by Officer Magness upon exiting a convenience store. Magness told Plaintiff that he was not under arrest, but handcuffed Plaintiff for Magness's protection. (Doc. 6 at 3.) After handcuffing Plaintiff, Magness informed Plaintiff that he suspected him in a theft. (
Plaintiff contends that Magness misrepresented that Plaintiff was suspected of theft to detain and harass him. He further alleges that Magness violated his Fourth Amendment right against unreasonable search and seizure where Plaintiff refused to consent to a search of his person. Plaintiff contends the same acts also violated Plaintiff's Fourteenth Amendment Due Process and Equal Protection rights. Plaintiff alleges that as a result of Magness's wrongful acts, he was arrested, which resulted in the loss of his job and emotional and financial harm.
Records available on-line reflect that Plaintiff is being held at the Fourth Avenue Jail in connection with two criminal cases currently pending in Maricopa County Superior Court, case##CR2011-147242 and CR2011-007861.
To state a claim under § 1983, a plaintiff must allege that (1) the conduct about which he complains was committed by a person acting under color of state law, and (2) the conduct deprived him of a constitutional right.
Plaintiff asserts a violation of his Fourteenth Amendment substantive due process rights based on the same conduct that he alleges violated his Fourth Amendment right to be free of unreasonable searches and seizures. "As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended."
In this case, Plaintiff's Fourteenth Amendment substantive due process claim is subsumed by the Fourth Amendment's more discrete right to be free from unreasonable searches and seizures. Accordingly, to the extent that Plaintiff asserts a violation of his due process rights based on search or seizure, he fails to state a claim and his due process claim will be dismissed.
Plaintiff also asserts a violation of the Equal Protection Clause of the Fourteenth Amendment. "[T]he Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution."
Plaintiff does not allege the violation of a fundamental right. While Plaintiff does allege that he is Black, he does not allege facts to support that Magness targeted or discriminated against him based upon his race. Plaintiff also fails to allege facts to support that he was intentionally treated differently than similarly-situated individuals without a reasonable basis therefor. Accordingly, Plaintiff also fails to state an Equal Protection claim.
A prisoner's claim for damages under § 1983 must be dismissed if a judgment in favor of the plaintiff would necessarily imply the invalidity of any outstanding criminal judgment against him, unless the prisoner demonstrates that the conviction or sentence has previously been reversed, expunged, or otherwise invalidated.
In
(citations omitted and emphasis added).
Liberally construed, Plaintiff states a claim against Defendant Magness for violation of his Fourth Amendment rights. As discussed herein, a criminal case related to Plaintiff's remaining civil claim in this case is currently pending. The Court therefore finds that a stay of that claim appears to be appropriate in this civil case. If Plaintiff is ultimately convicted in his criminal case and his conviction is not reversed, expunged, or otherwise invalidated, the remaining claim in his First Amended Complaint will be barred by
The Court will order that the First Amended Complaint be served on Defendant Magness, but the Court will stay the filing of a response to the First Amended Complaint pending further Court order. However, Defendant will be required to file a notice every 90 days regarding the status of Plaintiff's pending criminal cases in Maricopa County Superior Court.
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice.
(1) Plaintiff's Due Process and Equal Protection claims in Counts I and II are dismissed without prejudice. (Doc. 6.)
(2) Defendant's motion to dismiss is
(3) Defendant Magness
(4) Pending further Court order, Defendant Magness must file a notice in this case regarding the status of Plaintiff's pending criminal cases in Maricopa County Superior Court every