Petition for Writ of Certiorari — Mitchell Taebel, Petitioner v. Maricopa County Attorney's Office, et al.

Supreme Court briefJul 18, 2019

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EXHIBIT 1

Case: 19-15023, 04/23/2019, ID: 11273016, DktEntry: 12, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MITCHELL TAEBEL,

Plaintiff-Appellant,

No. 19-15023

D.C. No. 2:18-cv-02496-JAT-ESW

District of Arizona, Phoenix

ORDER

MARICOPA COUNTY ATTORNEY'S

OFFICE; et al.,

Defendants-Appellees.

Before: O’SCANNLAIN, W. FLETCHER, and WATFORD, Circuit Judges.

Upon a review of the record and the responses to the court’s January 8, 2019

order to show cause, we conclude this appeal is frivolous. We therefore deny

appellant’s motion to proceed in forma pauperis (Docket Entry No. 3), see 28

U.S.C. § 1915(a), and dismiss this appeal as frivolous, pursuant to 28 U.S.C.

§ 1915(e)(2) (court shall dismiss case at any time, if court determines it is frivolous

or malicious).

Appellant’s motion for an injunction (Docket Entry No. 7) is denied as

moot.

DISMISSED.

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Case 2:18-cv-02496-JAT—ESW Document 19 Filed 12/13/18 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

NO. CV-18-02496-PHX-JAT (ESW)

Mitchell Taebel,

Plaintiff,

JUDGMENT OF DISMISSAL IN A

Maricopa County Attorney's Office, et al.,

Defendants.

CIVIL CASE

Decision by Court. This action came for consideration before the Court. The

issues have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that pursuant to the Court’s Order filed

December 13, 2018, Plaintiffs First Amended Complaint is dismissed pursuant to

Younger v. Harris, 401 U.S. 37 (1971) and this matter is hereby terminated.

Brian D. Karth_______

District Court Executive/Clerk

of Court

December 13, 2018

s/ L. Dixon

Deputy Clerk

Case 2:18-cv-02496-JAT~ESW Document 18 Filed 12/13/18 Page 1 of 6

ASH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV 18-02496-PHX-JAT(ESW)

Mitchell Taebel,

Plaintiff,

ORDER

Maricopa County Attorney’s Office, et

al.,

Defendants.

On or about July 19,2018, Plaintiff Mitchell Taebel, who is confined in a Maricopa

County Jail, filed a pro se Complaint in Maricopa County Superior Court. Defendants

were served shortly thereafter, and, on August 7, 2018, timely removed the matter to this

Court and paid the filing fee. By Order dated August 24, 2018, the Court accepted

jurisdiction, but dismissed the Complaint for failure to comply with Rule 3.4 of the Local

Rules of Civil Procedure. Plaintiff was provided with 30 days in which to file an amended

complaint that cured the deficiencies identified in the Order.

Plaintiff has now filed a First Amended Complaint (Doc. 16). Plaintiff has also filed

an omnibus motion for discovery, default judgment, bail reduction, and summary judgment

(Doc. 8), a Motion to Change Judge (Doc. 11), two motions for “Arrest Warrants” (Docs.

13 and 14), and a Motion for Preliminary Injunction (Doc. 15).

Motion to Change Judge

Title 28, Section 455(a) provides that a United States judge “shall disqualify”

himself in any proceeding in which his “impartiality might reasonably be questioned.”

Case 2:18-cv-02496-JAT--ESW Document 18 Filed 12/13/18 Page 2 of 6

Section 455(b)(1) provides that a judge must also disqualify himself where he “has a

personal bias or prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding^]” Recusal pursuant to § 455(b) is required

only if the bias or prejudice stems from an extra-judicial source, not from conduct or rulings

during the course of the proceedings. See Hasbrouckv. Texaco, Inc., 842 F.2d 1034, 1046

(9th Cir. 1987), aff’d, 496 U.S. 543 (1990); United States v. Studley, 783 F.2d 934, 939

(9th Cir. 1986) (judge’s prior adverse rulings are insufficient cause for recusal). “[Jjudicial

rulings alone almost never constitute [a] valid basis for a bias or partiality motion.” Liteky

v. United States, 114 S. Ct. 1147, 1157 (1994). Adverse rulings should be appealed; they

do not form the basis for a recusal motion. Further, where the judge forms opinions in the

courtroom, either in the current proceeding or in a prior proceeding, these opinions “do not

constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism

or antagonism that would make fair judgment impossible.” Id.

Title 28, Section 144 provides for recusal where a party files a “timely and sufficient

affidavit that the judge before whom the matter is pending has a personal bias or prejudice

either against him or in favor of any adverse party.” The affidavit must state the facts and

reasons for the belief that the bias or prejudice exists. 28 U.S.C. § 144. If the judge finds

the affidavit timely and legally sufficient, the judge must proceed no further and another

judge must be assigned to hear the motion. Id.; United States v. Sibla, 624 F.2d 864, 867

(9th Cir. 1980).

Here, Plaintiff has not demonstrated that recusal pursuant to either §455 or §144 is

warranted.

partiality might reasonably be questioned. Nor has Plaintiff identified any extra-judicial

source of any bias or prejudice. Further, Plaintiff has failed to provide the affidavit required

by § 144, or to state the facts and reasons, under oath, for why he believes that the

undersigned has any bias or prejudice against him. Accordingly, recusal is not appropriate,

and Plaintiffs Motion will be denied.

Plaintiff has not alleged any evidence to support that the undersigned’s

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Case 2:18-cv-02496-JAT--ESW Document 18 Filed 12/13/18 Page 3 of 6

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)(l)-(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.”

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

“[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 plaintiffs 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)).

III.

First Amended Complaint

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Case 2:18-cv-02496-JAT--ESW Document 18 Filed 12/13/18 Page 4 of 6

In his three-count First Amended Complaint, Plaintiff names the Maricopa County

Attorney’s Office, Maricopa County Attorney William G. Montgomery, Deputy Maricopa

County Attorney Aaron Harder, Maricopa County, and Arizona Governor Doug Ducey as

Defendants. Plaintiff seeks “a preventative injunction against a malicious [and] unlawful

prosecution,” and “$250 billion USD” in damages. Plaintiff makes claims related to “false

imprisonment by excessive bail” (Count One), “malicious and unlawful prosecution”

(Count Two), and “fraud by the Maricopa County Attorney’s Office” (Count Three).

IV.

Failure to State a Claim

To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

(2) under color of state law (3) deprived him of federal rights, privileges or immunities and

(4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir.

2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm ’n, 42 F.3d 1278,

1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury

as a result of the conduct of a particular defendant and he must allege an affirmative link

between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-

72, 377 (1976).

As an initial matter, Plaintiff makes no allegations against Defendants Harder,

Ducey, or the County of Maricopa; indeed, Plaintiff makes no mention of them at all in his

First Amended Complaint. Accordingly, these Defendants will be dismissed.

More importantly, however, the abstention doctrine set forth in Younger v. Harris,

401 U.S. 37 (1971), prevents a federal court in most circumstances from directly interfering

with ongoing criminal proceedings in state court.

continues to apply while a case works its way through the state appellate process. New

Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369 (1989)

(“[f]or Younger purposes, the State’s trial-and-appeals process is treated as a unitary

system”); Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) (“Virtually all of the evils at

which Younger is directed would inhere in federal intervention prior to completion of state

appellate proceedings, just as surely as they would if such intervention occurred at or before

.4.

The Younger abstention doctrine

Case 2:18-cv-02496-JAT—ESW Document 18 Filed 12/13/18 Page 5 of 6

trial.”)

“Three requirements have evolved for proper invocation of Younger. (1) ongoing

state judicial proceedings; (2) implication of an important state interest in the proceedings,

and; (3) an adequate opportunity to raise federal questions in the proceedings.” World

Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987)

(citation omitted).

Based on these criteria, Younger abstention is appropriate here. The State’s interest

in prosecuting Plaintiff is obvious.1 Plaintiff can adequately litigate his underlying claims

related to the propriety of his present prosecution in his ongoing state criminal proceedings.

Conversely, the potential for federal-state friction resulting from federal intervention is

heightened should this Court interfere with those proceedings. Put another way, if relief is

available to Plaintiff in connection with his state criminal proceedings, it lies in the state

court. When Plaintiffs state court criminal proceedings have concluded, Plaintiff may

seek relief in federal court for any denial of a federally protected right through a petition

for writ of habeas corpus. However, Plaintiff should note that federal courts will not

entertain a habeas petition until Plaintiff has exhausted his state court remedies, Rose v.

Lundy, 455 U.S. 509 (1982), and any claim for damages will be barred by Heck v.

Humphrey, 512 U.S. All (1994), unless Plaintiff can demonstrate his conviction has

previously been reversed or otherwise invalidated, because such a judgment in favor of

Plaintiff on these issues would necessarily imply the invalidity of his conviction or

sentence.

Accordingly, the First Amended Complaint and this action will be dismissed

pursuant to Younger. Plaintiffs various remaining motions will be denied as moot.

IT IS ORDERED:

i Petitioner has been char

*ged with two counts of aggravated assault with a deadly

weapon, two counts of unlawful flight from a law enforcement vehicle, and three counts of

endangerment. His prosecution appears to remain ongoing. See Maricopa County Superior

Court

Docket

case

no.

CR2019-104-389

{available

http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/

caseInfo.asp?caseNumber= CR2018-104389) {last visited December 10, 2018).

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Case 2:18-cv-02496-JAT—ESW Document 18 Filed 12/13/18 Page 6 of 6

(1)

Plaintiffs Motion to Change Judge (Doc. 11) is denied.

(2)

Plaintiffs First Amended Complaint is dismissed pursuant to Younger v.

Harris, 401 U.S. 37 (1971), and the Clerk of Court must enter judgment accordingly.

(3)

Plaintiffs omnibus motion for discovery, default judgment, bail reduction,

and summary judgment (Doc. 8), two motions for “Arrest Warrants” (Docs. 13 and 14),

and Motion for Preliminary Injunction (Doc. 15) are denied as moot.

(4)

The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3)

and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal

of this decision would be taken in good faith and certifies that an appeal would not be taken

in good faith for the reasons stated in the Order and because there is no arguable factual or

legal basis for an appeal.

Dated this 13 th day of December, 2018.

James A Teiiborg

Senior United States District Judge

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Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.