1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Arthur Leon Vitasek, No. CV 21-01836-PHX-MTL (JZB) 10 Plaintiff, 11 v. ORDER 12 Amy M. Wood, et al., 13 Defendants.
14 15 Plaintiff Arthur Leon Vitasek is confined in The GEO Group’s Central Arizona 16 Detention Center. He filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and subsequently paid the filing and administrative fees. The Court will 18 dismiss this action because Plaintiff is seeking monetary damages from immune 19 defendants. 20 I. Statutory Screening of Prisoner Complaints 21 The Court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or an officer or an employee of a governmental entity. 28 23 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 24 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 25 relief may be granted, or that seek monetary relief from a defendant who is immune from 26 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 27 A pleading must contain a “short and plain statement of the claim showing that the 28 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 1 not demand detailed factual allegations, “it demands more than an unadorned, the- 2 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 3 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Id. 5 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 6 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 7 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 8 that allows the court to draw the reasonable inference that the defendant is liable for the 9 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 10 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 11 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 12 allegations may be consistent with a constitutional claim, a court must assess whether there 13 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 14 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 15 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 16 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 17 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 18 U.S. 89, 94 (2007) (per curiam)). 19 If the Court determines that a pleading could be cured by the allegation of other 20 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 21 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 22 Plaintiff’s Complaint will be dismissed because he is seeking monetary damages from 23 immune defendants, without leave to amend because the defects cannot be corrected. 24 II. Complaint 25 In his two-count Complaint, Plaintiff names as Defendants Arizona Court of 26 Appeals Judge Randall M. Howe and Arizona Court of Appeals Clerk of Court Amy M. 27 Wood. In both counts, Plaintiff raises claims regarding his access to the courts. He seeks 28 1 monetary damages, reimbursement of fees paid to the Court of Appeals, his attorney’s fees, 2 and his fees and costs associated with this lawsuit. 3 In Count One, Plaintiff contends he filed a petition for review in the Arizona Court 4 of Appeals, but Defendant Howe “refused to consider [one] constitutional issue[,] claiming 5 2 pages were missing from the Appellant[’]s appeal brief.” Plaintiff claims he filed a 6 motion for reconsideration “with the alleged missing pages” and “swore a complete 7 original [had been] sent to the Clerk of the Court.” He also mailed Defendant Wood a 8 check “to pay the fee” for the pages Defendant Howe claimed were missing. Plaintiff 9 alleges he received a letter from Defendant Wood “supplying the . . . pages.” 10 Plaintiff asserts he “now ha[d] 100% proof the pages were not missing” and wrote 11 to Defendant Wood “requesting information on scanning procedures and who had access 12 to the Court[’]s computer.” He claims Defendant Wood, “either by her own accord or by 13 direction from [Defendant] Howe,” did not respond to this request or to subsequent 14 requests for the same information. 15 Plaintiff alleges he also contacted his trial counsel about the situation, and his 16 attorney “wrote an affidavit affirming the Plaintiff was denied a fair trial and effective 17 assistance due to [the issue raised in the petition for review Defendant Howe refused to 18 consider].” He claims the affidavit and a supplement were submitted to Defendant Howe. 19 On January 12, 2021, Defendant Howe denied Plaintiff’s motion for reconsideration 20 without explanation. A week later, Plaintiff allegedly sent Defendant Wood a “notice of 21 intent to sue due to her part in the misconduct [in the appellate court].” On January 27, 22 Plaintiff received an order from Defendant Howe vacating the January 12 Order. Plaintiff 23 claims “[t]here is reason to believe [Defendant] Wood informed [Defendant] Howe about 24 Plaintiff’s notice of intent to sue her.” On January 28, Plaintiff received another order from 25 Defendant Howe, again denying the motion for reconsideration.1 26 . . . . 27
28 1 Plaintiff claims he filed a special action to the Arizona Supreme Court, which the Arizona Supreme Court converted into a petition for review and subsequently denied. 1 Plaintiff contends there was a “clear d[e]reliction of duties” by Defendant Wood 2 because she failed to scan Plaintiff’s document and, “[o]nce apprised of the error,” either 3 ignored the error, failed to correct the error, or “conspired with [Defendant] Howe to cover 4 up the error.” Plaintiff alleges this deprived him of having his “meritorious issue heard 5 and adjudicated by the State Courts.” 6 In Count Two, Plaintiff claims that “[e]ven though there is no evidence at this time” 7 that Defendant Howe deleted or instructed Defendant Wood to delete the pages from 8 Plaintiff’s brief, “it stands to reason” because Defendant Howe “did nothing to verify the 9 pages were missing” and “proceeded to the most draconian sanction with no ability for 10 [Defendant Wood] or the Plaintiff to correct the alleged error.” Plaintiff asserts that “[e]ven 11 though there is no evidence at this time” that Defendant Wood spoke to Defendant Howe 12 about the error and its need to be corrected, “it stands to reason” because Defendant Howe 13 vacated his order denying the motion for reconsideration after Defendant Wood received 14 the notice of intent to sue and, “once [Defendant] Wood left the Judge’s chambers,” 15 Defendant Howe “reissued the denial.” Plaintiff contends “[t]his action . . .
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1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Arthur Leon Vitasek, No. CV 21-01836-PHX-MTL (JZB) 10 Plaintiff, 11 v. ORDER 12 Amy M. Wood, et al., 13 Defendants.
14 15 Plaintiff Arthur Leon Vitasek is confined in The GEO Group’s Central Arizona 16 Detention Center. He filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and subsequently paid the filing and administrative fees. The Court will 18 dismiss this action because Plaintiff is seeking monetary damages from immune 19 defendants. 20 I. Statutory Screening of Prisoner Complaints 21 The Court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or an officer or an employee of a governmental entity. 28 23 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 24 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 25 relief may be granted, or that seek monetary relief from a defendant who is immune from 26 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 27 A pleading must contain a “short and plain statement of the claim showing that the 28 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 1 not demand detailed factual allegations, “it demands more than an unadorned, the- 2 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 3 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Id. 5 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 6 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 7 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 8 that allows the court to draw the reasonable inference that the defendant is liable for the 9 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 10 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 11 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 12 allegations may be consistent with a constitutional claim, a court must assess whether there 13 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 14 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 15 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 16 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 17 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 18 U.S. 89, 94 (2007) (per curiam)). 19 If the Court determines that a pleading could be cured by the allegation of other 20 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 21 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 22 Plaintiff’s Complaint will be dismissed because he is seeking monetary damages from 23 immune defendants, without leave to amend because the defects cannot be corrected. 24 II. Complaint 25 In his two-count Complaint, Plaintiff names as Defendants Arizona Court of 26 Appeals Judge Randall M. Howe and Arizona Court of Appeals Clerk of Court Amy M. 27 Wood. In both counts, Plaintiff raises claims regarding his access to the courts. He seeks 28 1 monetary damages, reimbursement of fees paid to the Court of Appeals, his attorney’s fees, 2 and his fees and costs associated with this lawsuit. 3 In Count One, Plaintiff contends he filed a petition for review in the Arizona Court 4 of Appeals, but Defendant Howe “refused to consider [one] constitutional issue[,] claiming 5 2 pages were missing from the Appellant[’]s appeal brief.” Plaintiff claims he filed a 6 motion for reconsideration “with the alleged missing pages” and “swore a complete 7 original [had been] sent to the Clerk of the Court.” He also mailed Defendant Wood a 8 check “to pay the fee” for the pages Defendant Howe claimed were missing. Plaintiff 9 alleges he received a letter from Defendant Wood “supplying the . . . pages.” 10 Plaintiff asserts he “now ha[d] 100% proof the pages were not missing” and wrote 11 to Defendant Wood “requesting information on scanning procedures and who had access 12 to the Court[’]s computer.” He claims Defendant Wood, “either by her own accord or by 13 direction from [Defendant] Howe,” did not respond to this request or to subsequent 14 requests for the same information. 15 Plaintiff alleges he also contacted his trial counsel about the situation, and his 16 attorney “wrote an affidavit affirming the Plaintiff was denied a fair trial and effective 17 assistance due to [the issue raised in the petition for review Defendant Howe refused to 18 consider].” He claims the affidavit and a supplement were submitted to Defendant Howe. 19 On January 12, 2021, Defendant Howe denied Plaintiff’s motion for reconsideration 20 without explanation. A week later, Plaintiff allegedly sent Defendant Wood a “notice of 21 intent to sue due to her part in the misconduct [in the appellate court].” On January 27, 22 Plaintiff received an order from Defendant Howe vacating the January 12 Order. Plaintiff 23 claims “[t]here is reason to believe [Defendant] Wood informed [Defendant] Howe about 24 Plaintiff’s notice of intent to sue her.” On January 28, Plaintiff received another order from 25 Defendant Howe, again denying the motion for reconsideration.1 26 . . . . 27
28 1 Plaintiff claims he filed a special action to the Arizona Supreme Court, which the Arizona Supreme Court converted into a petition for review and subsequently denied. 1 Plaintiff contends there was a “clear d[e]reliction of duties” by Defendant Wood 2 because she failed to scan Plaintiff’s document and, “[o]nce apprised of the error,” either 3 ignored the error, failed to correct the error, or “conspired with [Defendant] Howe to cover 4 up the error.” Plaintiff alleges this deprived him of having his “meritorious issue heard 5 and adjudicated by the State Courts.” 6 In Count Two, Plaintiff claims that “[e]ven though there is no evidence at this time” 7 that Defendant Howe deleted or instructed Defendant Wood to delete the pages from 8 Plaintiff’s brief, “it stands to reason” because Defendant Howe “did nothing to verify the 9 pages were missing” and “proceeded to the most draconian sanction with no ability for 10 [Defendant Wood] or the Plaintiff to correct the alleged error.” Plaintiff asserts that “[e]ven 11 though there is no evidence at this time” that Defendant Wood spoke to Defendant Howe 12 about the error and its need to be corrected, “it stands to reason” because Defendant Howe 13 vacated his order denying the motion for reconsideration after Defendant Wood received 14 the notice of intent to sue and, “once [Defendant] Wood left the Judge’s chambers,” 15 Defendant Howe “reissued the denial.” Plaintiff contends “[t]his action . . . is very 16 suspicious and shows an appearance of impropriety.” Plaintiff asserts that in addition to 17 Defendant Howe violating Plaintiff’s constitutional rights, Defendant Howe also violated 18 his oath of office and various “Cannons and Rules.” Plaintiff alleges Defendant Howe’s 19 actions are “not in conjunction with his duties as a judge” and Defendant Howe “exceeded 20 and abused his position to ensure the Plaintiff’s constitutional claims would not be 21 overturned” and engaged in “willful misconduct in violation of his oath of office and the 22 Code of Judicial Conduct.” 23 III. Dismissal of Complaint 24 Judges are absolutely immune from § 1983 suits for damages for their judicial acts 25 except when they are taken “in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 26 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); 27 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). An act is “judicial” when it is a 28 function normally performed by a judge and the parties dealt with the judge in his or her l | judicial capacity. Stump, 435 U.S. at 362; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 2 | 1990). This immunity attaches even if the judge is accused of acting maliciously and 3 | corruptly, Pierson v. Ray, 386 U.S. 547, 554 (1967), or of making grave errors of law or 4 | procedure. See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). 5 | Likewise, “[c]Jourt clerks have absolute quasi-judicial immunity from damages for 6 | civil rights violations when they perform tasks that are an integral part of the judicial 7 | process.” Mullis v. United States Bankr. Ct., 828 F.2d 1385, 1390 (9th Cir. 1987). 8 | Accepting or denying motions or pleadings is an integral part of the judicial process. /d. 9 | Immunity is not lost because the Clerk makes a mistake or fails to carry out her duties, 10 | even when it results in “‘grave procedural errors.’” /d. (quoting Stump, 435 U.S. at 359). 11 | Plaintiff's claims relate to Defendants Howe’s and Wood’s conduct in Plaintiff’s 12 | appellate court action. His claims are barred by judicial immunity and quasi-judicial 13 | immunity. Thus, the Court will dismiss this action. 14 | IT IS ORDERED: 15 | (1) The Complaint (Doc. 1) is dismissed pursuant to 28 U.S.C. § 1915A(b)(2), 16 | and the Clerk of Court must enter judgment accordingly. 17 | (2) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3), 18 | has considered whether an appeal of this decision would be taken in good faith and certifies 19 | that an appeal would not be taken in good faith for the reasons stated in the Order and 20 | because there is no arguable factual or legal basis for an appeal. 21 | Dated this 8th day of December, 2021. 22 | | Mk Lo. ‘chal T. dihurdke Michael T. Liburdi 25 | United States District Judge 26 | 27 | 28 |