1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jesus Ernesto Loreto, Jr., No. CV-20-0553-TUC-BGM 10 Plaintiff, 11 v. ORDER
12 Cochise County Superior Court and State of Arizona, 13 14 Defendants. 15 Plaintiff Ernesto Loreto, Jr. filed a pro se Petition for a Writ of Certiorari 16 (“Complaint”) (Doc. 1). Plaintiff did not immediately pay the $402.00 civil action filing 17 fee but filed a Motion for Leave to Proceed in forma pauperis (Doc. 2). 18 19 I. APPLICATION TO PROCEED IN FORMA PAUPERIS 20 The Court may allow a plaintiff to proceed without prepayment of fees when it is 21 shown by affidavit that he “is unable to pay such fees[.]” 28 U.S.C. § 1915(a)(1). 22 Plaintiff’s statement (Doc. 3), made under penalty of perjury, establishes that Plaintiff has 23 few assets and his spouse earns a small income from her employment. The Court finds 24 Plaintiff is unable to pay the fees. Plaintiff’s Application to Proceed in District Court 25 Without Prepaying Fees or Costs (Doc. 2) will be granted. 26 27 II. STATUTORY SCREENING OF PLAINTIFF’S COMPLAINT 28 This Court is required to dismiss a case if the Court determines that the allegation 1 of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action 2 “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or 3 (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 4 U.S.C. § 1915(e)(2)(B). 5 A pleading must contain a “short and plain statement of the claim showing that the 6 pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not demand 7 detailed factual allegations, “it demands more than an unadorned, the-defendant- 8 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 9 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, 10 supported by mere conclusory statements, do not suffice.” Id. Where the pleader is pro 11 se, however, the pleading should be liberally construed in the interests of justice. 12 Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975); see also Hebbe v. Pliler, 627 13 F.3d 338, 342 (9th Cir. 2010). Nonetheless, a complaint must set forth a set of facts that 14 serves to put defendants on notice as to the nature and basis of the claim(s). See Brazil v. 15 U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). 16 A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent standards 17 than formal pleadings drafted by lawyers.’” Hebbe, 627 F.3d at 342 (quoting Erickson v. 18 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “Rule 8(a)’s simplified pleading standard 19 applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 20 U.S. 506, 513, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002). “Given the Federal Rules’ 21 simplified standard for pleading, ‘[a] court may dismiss a complaint only if it is clear that 22 no relief could be granted under any set of facts that could be proved consistent with the 23 allegations.’” Id. at 514, 122 S.Ct. at 998 (quoting Hison v. King & Spaulding, 467 U.S. 24 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)) (alterations in original); see also Johnson, 25 et al. v. City of Shelby, Mississippi, 574 U.S. 10, 11, 135 S. Ct. 346, 346, 190 L. Ed. 2d 26 309 (2014) (“Federal pleading rules call for ‘a short and plain statement of the claim 27 showing that the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not 28 countenance dismissal of a complaint for imperfect statement of the legal theory 1 supporting the claim asserted”). 2 If the Court determines that a pleading could be cured by the allegation of other 3 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 4 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The 5 Court should not, however, advise the litigant how to cure the defects. This type of 6 advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v. 7 Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to 8 decide whether the court was required to inform a litigant of deficiencies). 9 10 III. COMPLAINT 11 Plaintiff’s Complaint (Doc. 1) alleges that there is “a federal question pertaining 12 to several violations of the United States Constitution, et al [sic], denile [sic] of due 13 process, violation of civil rights, violation of criminal procedure act, violation of the 14 ru[les] of evidence.” Compl. (Doc. 1) at 3. Plaintiff further alleges that the state trial 15 court rejected his plea, and trial counsel was not diligent in his defense. Id. at 3–5. 16 Plaintiff seeks “review from the higher court[.]” Id. at 4. 17 A. Subject Matter Jurisdiction 18 As an initial matter, this Court must consider whether it has jurisdiction to hear 19 Mr. Loredo’s claims. “Federal courts are courts of limited jurisdiction.” Kokkonen v. 20 Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 21 L.Ed.2d 391 (1994). A district court has original jurisdiction “of all civil actions arising 22 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This is 23 known as federal question jurisdiction. District courts also have original jurisdiction “of 24 all civil actions where the matter in controversy exceeds the sum or value of $75,000, 25 exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens 26 of a State and citizens or subjects of a foreign state; (3) citizens of different States and in 27 which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, 28 defined in section 1603(a) of this title as plaintiff and citizens of a State or of different 1 States.” 28 U.S.C. § 1332. This is referred to as diversity jurisdiction. 2 Plaintiff’s Complaint (Doc. 1) indicates that jurisdiction is premised on violations 3 of the United States Constitution. Compl. (Doc. 1) at 3. Broadly construed, Plaintiff is 4 seeking habeas relief pursuant to 28 U.S.C. § 2254; however, at the time of filing 5 Plaintiff’s state court criminal case was ongoing. See State v. Loreto, No. CR201900009, 6 Docket (Cochise Cnty. Super. Ct.).1 As such, the Court has federal subject matter 7 jurisdiction over Plaintiff’s claim.2 8 B. Younger Abstention 9 “Since the beginning of this country’s history Congress has, subject to few 10 exceptions, manifested a desire to permit state courts to try state cases free from 11 interference by federal courts.” Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jesus Ernesto Loreto, Jr., No. CV-20-0553-TUC-BGM 10 Plaintiff, 11 v. ORDER
12 Cochise County Superior Court and State of Arizona, 13 14 Defendants. 15 Plaintiff Ernesto Loreto, Jr. filed a pro se Petition for a Writ of Certiorari 16 (“Complaint”) (Doc. 1). Plaintiff did not immediately pay the $402.00 civil action filing 17 fee but filed a Motion for Leave to Proceed in forma pauperis (Doc. 2). 18 19 I. APPLICATION TO PROCEED IN FORMA PAUPERIS 20 The Court may allow a plaintiff to proceed without prepayment of fees when it is 21 shown by affidavit that he “is unable to pay such fees[.]” 28 U.S.C. § 1915(a)(1). 22 Plaintiff’s statement (Doc. 3), made under penalty of perjury, establishes that Plaintiff has 23 few assets and his spouse earns a small income from her employment. The Court finds 24 Plaintiff is unable to pay the fees. Plaintiff’s Application to Proceed in District Court 25 Without Prepaying Fees or Costs (Doc. 2) will be granted. 26 27 II. STATUTORY SCREENING OF PLAINTIFF’S COMPLAINT 28 This Court is required to dismiss a case if the Court determines that the allegation 1 of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action 2 “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or 3 (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 4 U.S.C. § 1915(e)(2)(B). 5 A pleading must contain a “short and plain statement of the claim showing that the 6 pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not demand 7 detailed factual allegations, “it demands more than an unadorned, the-defendant- 8 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 9 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, 10 supported by mere conclusory statements, do not suffice.” Id. Where the pleader is pro 11 se, however, the pleading should be liberally construed in the interests of justice. 12 Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975); see also Hebbe v. Pliler, 627 13 F.3d 338, 342 (9th Cir. 2010). Nonetheless, a complaint must set forth a set of facts that 14 serves to put defendants on notice as to the nature and basis of the claim(s). See Brazil v. 15 U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). 16 A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent standards 17 than formal pleadings drafted by lawyers.’” Hebbe, 627 F.3d at 342 (quoting Erickson v. 18 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “Rule 8(a)’s simplified pleading standard 19 applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 20 U.S. 506, 513, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002). “Given the Federal Rules’ 21 simplified standard for pleading, ‘[a] court may dismiss a complaint only if it is clear that 22 no relief could be granted under any set of facts that could be proved consistent with the 23 allegations.’” Id. at 514, 122 S.Ct. at 998 (quoting Hison v. King & Spaulding, 467 U.S. 24 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)) (alterations in original); see also Johnson, 25 et al. v. City of Shelby, Mississippi, 574 U.S. 10, 11, 135 S. Ct. 346, 346, 190 L. Ed. 2d 26 309 (2014) (“Federal pleading rules call for ‘a short and plain statement of the claim 27 showing that the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not 28 countenance dismissal of a complaint for imperfect statement of the legal theory 1 supporting the claim asserted”). 2 If the Court determines that a pleading could be cured by the allegation of other 3 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 4 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The 5 Court should not, however, advise the litigant how to cure the defects. This type of 6 advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v. 7 Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to 8 decide whether the court was required to inform a litigant of deficiencies). 9 10 III. COMPLAINT 11 Plaintiff’s Complaint (Doc. 1) alleges that there is “a federal question pertaining 12 to several violations of the United States Constitution, et al [sic], denile [sic] of due 13 process, violation of civil rights, violation of criminal procedure act, violation of the 14 ru[les] of evidence.” Compl. (Doc. 1) at 3. Plaintiff further alleges that the state trial 15 court rejected his plea, and trial counsel was not diligent in his defense. Id. at 3–5. 16 Plaintiff seeks “review from the higher court[.]” Id. at 4. 17 A. Subject Matter Jurisdiction 18 As an initial matter, this Court must consider whether it has jurisdiction to hear 19 Mr. Loredo’s claims. “Federal courts are courts of limited jurisdiction.” Kokkonen v. 20 Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 21 L.Ed.2d 391 (1994). A district court has original jurisdiction “of all civil actions arising 22 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This is 23 known as federal question jurisdiction. District courts also have original jurisdiction “of 24 all civil actions where the matter in controversy exceeds the sum or value of $75,000, 25 exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens 26 of a State and citizens or subjects of a foreign state; (3) citizens of different States and in 27 which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, 28 defined in section 1603(a) of this title as plaintiff and citizens of a State or of different 1 States.” 28 U.S.C. § 1332. This is referred to as diversity jurisdiction. 2 Plaintiff’s Complaint (Doc. 1) indicates that jurisdiction is premised on violations 3 of the United States Constitution. Compl. (Doc. 1) at 3. Broadly construed, Plaintiff is 4 seeking habeas relief pursuant to 28 U.S.C. § 2254; however, at the time of filing 5 Plaintiff’s state court criminal case was ongoing. See State v. Loreto, No. CR201900009, 6 Docket (Cochise Cnty. Super. Ct.).1 As such, the Court has federal subject matter 7 jurisdiction over Plaintiff’s claim.2 8 B. Younger Abstention 9 “Since the beginning of this country’s history Congress has, subject to few 10 exceptions, manifested a desire to permit state courts to try state cases free from 11 interference by federal courts.” Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 12 L.Ed.2d 669 (1971). “Younger exemplifies one class of cases in which federal-court 13 abstention is required: When there is a parallel, pending state criminal proceeding, 14 federal courts must refrain from enjoining the state prosecution.” Sprint Commc’ns, Inc. 15 v. Jacobs, 571 U.S. 69, 72, 134 S. Ct. 584, 588, 187 L. Ed. 2d 505 (2013). “Younger 16 applies when: (1) there is an ongoing state judicial proceeding; (2) the proceeding 17 implicates important state interests; (3) there is an adequate opportunity in the state 18 proceedings to raise constitutional challenges; and (4) the requested relief seeks to enjoin 19 or has the practical effect of enjoining the ongoing state judicial proceeding.” Bean v. 20 Matteucci, 986 F.3d 1128, 1133 (9th Cir. 2021) (quotations and citations omitted). 21 At the time this case was filed, Plaintiff was charged in the Cochise County 22 23 1 “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately 24 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 25 Evid. 201(b). Arizona state court orders and proceedings are proper material for judicial notice. See Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (taking judicial notice of orders and proceedings 26 before another tribunal). 27 2 To the extent that Plaintiff seeks this Court to exercise appellate jurisdiction over the state court proceeding, such jurisdiction is barred by the Rooker-Feldman doctrine. See Dubinka 28 v. Judges of Superior Ct. of State of Cal. for Cnty. of L.A., et al., 23 F.3d 218, 221 (9th Cir. 1994). 1 || Superior Court with several state law drug and weapons violations. See State v. Loreto, 2|| No. S-0200-CR-201900009, Docket (Cochise Cnty. Super. Ct.). Furthermore, the state 3|| has an important interest in prosecuting drug and weapons cases. Plaintiff has an 4|| adequate opportunity to raise constitutional challenges during his criminal case and any || appeals or post-conviction relief proceedings. Finally, any review would have the practical effect of enjoining the state criminal proceeding. Moreover, there is no 7\| evidence of “bad faith, harassment, or some other extraordinary circumstance that would 8 || make abstention inappropriate.” Bean, 986 F.3d at 1133 (citations omitted). As such, 9|| Younger abstention is appropriate in this case. Upon resolution of his state court 10 || proceedings, the appropriate mechanism for the relief Petitioner seeks is through a federal 11 || writ of habeas corpus. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) (Section 2254, Title 28, United States Code, “is the exclusive vehicle for a habeas 13 || petition by a state prisoner in custody pursuant to a state court judgment’), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). 15 V. CONCLUSION 17 Accordingly, IT IS HEREBY ORDERED that: 18 (1) ‘Plaintiff's Motion for Leave to Proceed in forma pauperis (Doc. 2) is GRANTED; 20 (2) Plaintiff's Complaint (Doc. 1) is DISMISSED WITHOUT PREJUDICE; and 22 (3) The Clerk of the Court shall close its file in this matter. 23 Dated this 25th day of May, 2021. 24 25 4] 26 Lb pL tK~ Cub 27 Honorable Raner ©. Collins 28 senior United States District Judge
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