Petition for Writ of Certiorari — Josh Albritton, Petitioner v. Mark Brnovich, Attorney General of Arizona, et al.

Supreme Court briefMay 28, 2020

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 5 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JOSH ALBRITTON,

No.

Plaintiff-Appellant,

MARK BRNOVICH, Attorney General; et

al.,

19-17205

D.C. No. 4:19-cv-00499-RCCPSOT

District of Arizona,

Tucson

ORDER

Defendants-Appellees.

Before:

MURGUIA, CHRISTEN, and BADE, Circuit Judges.

The district court certified that this appeal is not taken in good faith. See 28

U.S.C. § 1915(a). On November 4, 2019, this court ordered appellant to explain in

writing why this appeal should not be dismissed as frivolous. See 28 U.S.C.

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

or malicious).

Upon a review of the record and response to the November 4, 2019 order,

we conclude this appeal is frivolous. We therefore deny appellant’s motions to

proceed in forma pauperis (Docket Entry Nos. 2 and 4) and dismiss this appeal as

frivolous, pursuant to 28 U.S.C. § 1915(e)(2).

DISMISSED.

fypeajJix. p

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 27 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JOSH ALBRITTON,

Plaintiff - Appellant,

MARK BRNOVICH, Attorney

General; et al.,

No. 19-17205

D.C. No. 4:19-cv-00499-RCC-PSOT

U.S. District Court for Arizona,

Tucson

MANDATE

Defendants - Appellees.

The judgment of this Court, entered March 05, 2020, takes effect this date.

This constitutes the formal mandate of this Court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Rhonda Roberts

Deputy Clerk

Ninth Circuit Rule 27-7

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Josh Albritton,

No. CV 19-00499-TUC-RCC

Plaintiff,

ORDER

Mark Bmovich, et al.,

Defendants.

Plaintiff Josh Albritton, who is confined in the Arizona State Prison Complex-

Tucson, 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 Fee

The 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 assess an initial partial filing fee of $20.00. The remainder

of the 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.

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

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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.” 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 suffice.” Id.

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“[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 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.

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)).

If the 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).

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Plaintiff’s Complaint will be dismissed for failure to state a claim, without leave to amend

because the defects cannot be corrected.

III.

Complaint

Plaintiff was convicted in Cochise County Superior Court, case #CR2011-00236, of

three counts of aggravated assault and eight counts of misconduct involving weapons and

was sentenced to an 80-year term of imprisonment. See State v. Albritton, No. 2 CA-CR

2013-0128, 2013 WL 6730756, at *1 (Ariz. Ct. App. Dec. 19, 2013). i

In his three-count Complaint, Plaintiff sues Arizona Attorney General Mark

Bmovich, Cochise County Attorney Brian M. McIntyre and Deputy County Attorney

James Glanville, Sierra Vista Police Department Detectives Nicholas Lamay and Colin

Festa, former United States Attorney John S. Leonardo, an Unknown Psychiatrist at the

Pima County Jail, two Unknown Psychiatrists at the Arizona Department of

Corrections (ADC), the City of Sierra Vista, Cochise County, Pima County, and Cochise

County Superior Court Judge James Conlogue.2 Plaintiff asserts claims of violations of his

Second, Fifth, and Sixth Amendment rights with respect to his criminal convictions in

CR2011-00236. Plaintiff seeks $657,000,000 per year for each year of his incarceration

totaling $5,584,500,000 “on the private side.”

In Count One, Plaintiff alleges that on March 26,2011, Defendants Lamay and Festa

violated Plaintiffs right against self-incrimination by arresting him for not providing a

name “that was going to be used against [him].” Plaintiff claims Lamay and Festa “acted

in a conspiracy” to hide their theft of $40,000 in cash and dinars. Plaintiff asserts these

“offenses” were part of a scheme to unjustly enrich Defendants and were “compounded”

by perjury and obstruction of justice. Plaintiff alleges that his wrongful arrest resulted in

his wrongful imprisonment for the past eight years.

Plaintiff states throughout the Complaint that he was sentenced to a 90-year term

of imprisonment.

2 Defendant Conlogue was the trial judge in Plaintiffs criminal case.

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In Count Two, Plaintiff alleges that on March 26, 2011, Defendants Leonardo,

Bmovich, Lamay, Conlogue, Glanville, Festa, and Timothy Patterson began a civil

conspiracy to deprive Plaintiff of his Second Amendment right to keep and bear arms.

Plaintiff asserts Defendants committed this civil rights violation to steal “private” guns for

financial gain and unjust enrichment. Plaintiff claims these crimes were compounded by

perjury and obstruction of justice. He alleges he was wrongfully sentenced to 90 years in

prison and has served 8.5 of the 90 years.

In Count Three, Plaintiff alleges that Defendants Leonardo, Bmovich, Glanville,

Conlogue, and the Unknown Psychiatrists engaged in a civil conspiracy to forcibly drag

Plaintiff to exclude him from his trial, direct appeal, and post-conviction relief proceeding

and to prevent him from speaking to any attorneys. Plaintiff asserts Defendants have

wrongfully imprisoned him for 8.5 years of a 90-year sentence. He claims he has been

tortured, suffers from post-traumatic stress disorder, has been unable to raise his children,

and has lost all his private property.

IV.

Failure to State a Claim

Although pro se pleadings are liberally constmed, Haines v. Kemer, 404 U.S. 519,

520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey

v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a

liberal interpretation of a civil rights complaint may not supply essential elements of the

claim that were not initially pled. Id.

To state a valid claim under § 1983, a plaintiff must allege that he suffered a specific

injury as a result of specific conduct of a defendant and show an affirmative link between

the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72,

377 (1976). “A plaintiff must allege facts, not simply conclusions, that show that an

individual was personally involved in the deprivation of his civil rights.” Barren v.

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

A municipality, such as a county or city, may not be sued solely because an injury

Defendants Cochise County, Pima County, and City of Sierra Vista

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was inflicted by its employees or agents. Long v. County of Los Angeles, 442 F.3d 1178,

1185 (9th Cir. 2006). The actions of individuals may support municipal liability only if the

employees were acting pursuant to an official policy or custom of the municipality. Botello

v. Gammick, 413 F.3d 971, 978-79 (9th Cir. 2005). A § 1983 claim against a municipal

defendant “cannot succeed as a matter of law” unless a plaintiff: (1) contends that the

municipal defendant maintains a policy or custom pertinent to the plaintiffs alleged injury;

and (2) explains how such policy or custom caused the plaintiffs injury. Sadoski v.

Mosley, 435 F.3d 1076,1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant

pursuant to Fed. R. Civ. P. 12(b)(6)).

Plaintiff has failed to allege facts to support a conclusion that Defendants Cochise

County, Pima County, or City of Sierra Vista maintained a specific policy or custom that

resulted in a violation of Plaintiffs federal constitutional rights and has failed to explain

how his injuries were caused by any municipal policy or custom. Thus, the Court will

dismiss without prejudice Defendants Cochise County, Pima County, and City of Sierra

Vista.

Judges are absolutely immune from damages for all judicial acts performed within

their subject-matter jurisdiction, “even when such acts are in excess of their jurisdiction,

and are alleged to have been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S.

349, 356 (1978); Sadoski v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006); Harvey v.

Waldron, 210 F.3d 1008, 1012 (9th Cir. 2000). An act is “judicial” when it is a function

normally performed by a judge and the parties dealt with the judge in the judge’s judicial

capacity. Stump, 435 U.S. at 362; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990).

Plaintiff has not made any specific allegations against Defendant Conlogue.

Furthermore, Conlogue is absolutely immune from liability for any actions taken in

connection with Plaintiffs criminal proceeding.

Defendant Conlogue.

Defendant Conlogue

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Prosecutors are absolutely immune from liability under § 1983 for their conduct in

“initiating a prosecution and in presenting the State’s case” insofar as that conduct is

“intimately associated with the judicial phase of the criminal process.”

Fitzsimmons, 509 U.S. 259, 270 (1993) (citing Imbler v. Pachtman, 424 U.S. 409, 430

(1976)); Bums v. Reed, 500 U.S. 478,486 (1991); Ashelman v. Pope, 793 F.2d 1072, 1076

(9th Cir. 1986).

testimony from witnesses or for making false or defamatory statements during, and related

to judicial proceedings.” Buckley, 509 U.S. at 270 (citations omitted); Broam v. Bogan,

320 F.3d 1023, 1029-30 (9th Cir. 2003) (prosecutor absolutely immune from liability for

failing to investigate accusations before filing charges and for knowing use of false

testimony at trial).

Defendants McIntyre and Glanville

Buckley v.

Immunity extends to prosecutors for “eliciting false or defamatory

Plaintiff does not make any specific allegations against Defendants McIntyre and

Glanville. Furthermore, McIntyre and Glanville are absolutely immune for their conduct

in initiating Plaintiffs prosecution and presenting the State’s case against him.

Accordingly, the Court will dismiss Defendants McIntyre and Glanville.

Plaintiffs allegations concern his convictions and sentence in Arizona. Defendant

Leonardo was the United States Attorney for the District of Arizona and was not

responsible for prosecution of Arizona state criminal cases. Leonardo is therefore not a

proper Defendant and will be dismissed.

Defendant Leonardo

Plaintiff has simply made vague and conclusory allegations against Defendants

Brnovich, Lamay, Festa, Glanville, and Unknown Psychiatrists, without any factual

specificity as to what any particular Defendant did or failed to do. This is insufficient. See

Marcilis v. Township of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (upholding dismissal

of Bivens complaint that referred to all defendants “generally and categorically” because

the plaintiff had failed to ‘“allege, with particularity, facts that demonstrate what each

Defendants Brnovich, Lamay, Festa, and Unknown Psychiatrists

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defendant did to violate the asserted constitutional right.’”) (quoting Lanmanv. Hinson,

529 F.3d 673, 684 (6th Cir. 2008)); Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.

2008) (“Given the complaint’s use of either the collective term ‘Defendants’ or a list of the

defendants named individually but with no distinction as to what acts are attributable to

Whom, it is impossible for any of these individuals to ascertain what particular

unconstitutional acts they are alleged to have committed.”). Thus, the Court will dismiss

Defendants Bmovich, Lamay, Festa, and Unknown Psychiatrists.

Failure to state a claim includes circumstances where a defense is complete and

obvious from the face Of the pleadings. Franklin v. Murphy, 745 F.2d 1221,1228 (9th Cir.

1984). In the absence of waiver, the Court may raise the defense of statute of limitations

sua sponte. See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993). See

also Hughes v. Lott, 350 F.3d 1157,1163 (11th Cir. 2003) (upholding sua sponte dismissal

under 28 U.S.C. § 1915(e)(2)(B)(i) of prisoner’s time-barred complaint); Nasim v. Warden,

Maryland House of Corn, 64 F.3d 951, 956 (4th Cir. 1995) (same); Pino v. Ryan, 49 F.3d

51, 53-54 (2d Cir. 1995) (same); Moore v. McDonald, 30 F.3d 616, 620-21 (5th Cir. 1994)

(same); Johnson v. Rodriguez, 943 F.2d 104, 107-108 (1st Cir. 1991) (same).

Statute of Limitations

The applicable statute of limitations in an action under 42 U.S.C. § 1983 is the forum

state’s statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261,

276 (1985). The Arizona statute of limitations for personal injury actions is two years. See

Ariz. Rev. Stat. § 12-542(1). Accrual of § 1983 claims is governed by federal law. Wallace

v. Kato, 549 U.S. 384, 388 (2007). Under federal law, a claim accrues when the plaintiff

“knows or has reason to know of the injury that is the basis of the action.” Pouncil v.

Tilton, 704 F.3d 568, 574 (9th Cir. 2012); Cabrera v. City of Huntington Park, 159 F.3d

374, 381 (9th Cir. 1998). Thus, for a claim to be timely, it must have accrued no earlier

than two years before Plaintiffs Complaint was filed.

“[T]he statute of limitations upon a § 1983 claim seeking damages for a false arrest

in violation of the Fourth Amendment, where the arrest is followed by criminal

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proceedings, begins to run at the time the claimant becomes detained pursuant to legal

process.”

Therefore, the claim is facially barred by the statute of limitations and will be dismissed.3

Wallace, 549 U.S. at 397. Plaintiffs false arrest claim accrued in 2011.

Claims for Money Damages

Plaintiffs allegations can be constmed as asserting a malicious prosecution claim.

Although malicious prosecution claims can be brought against prosecutors and “other

persons who have wrongfully caused the charges to be filed,” Awabdy v. City of Adelanto,

368 F.3d 1062, 1066 (9th Cir. 2004), “[o]ne element that must be alleged and proved in a

malicious prosecution action is termination of the prior criminal proceeding in favor of the

accused.” Heck v. Humphrey, 512 U.S. 477,484 (1994). “A cause of action for malicious

prosecution does not accrue until the criminal proceedings have terminated in the plaintiffs

favor.” Id. at 489.

Furthermore, a prisoner’s claim for damages cannot be brought under 42 U.S.C.

§ 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence,” unless the prisoner demonstrates that the conviction or sentence

has previously been reversed, expunged, or otherwise invalidated. Id. at 486-87. Plaintiffs

false arrest and malicious prosecution claims necessarily imply the invalidity of his

convictions, and Plaintiff has not shown that the convictions have been reversed, expunged,

or otherwise invalidated. Accordingly, Plaintiffs claims for money damages have not yet

accrued and will be dismissed.

“Conspiracy is not itself a constitutional tort under § 1983,” and “there must always

be an underlying constitutional violation.” Lacey v. Maricopa Cnty., 693 F.3d 896, 935

(9th Cir. 2012) (en banc). Conclusory allegations of a conspiracy are insufficient to state

a claim.

Conspiracy

See Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (explaining the

3 In any event, Plaintiff has not stated a false arrest claim because he has not alleged

that there was no probable cause for his arrest, and he was indicted by a grand jury. See

Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998); Barlow v. Ground,

943 F.2d 1132, 113 (9th Cir. 1991); Kalina v. Fletcher, 522 U.S. 118 (1997).

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requirements of a conspiracy claim under § 1983). To state a conspiracy claim, a plaintiff

must show “an agreement or ‘meeting of the minds’ to violate constitutional rights.’” Id.

(citation omitted). The Court “need not, however, accept as true allegations that are merely

conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v.

Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended on other grounds, 275 F.3d

1187 (9th Cir. 2001); see also Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th

Cir. 1989) (conclusory allegations of conspiracy did not support a § 1983 claim); Karim-

Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (“A mere allegation

of conspiracy without factual specificity is insufficient.”).

Plaintiffs allegations that Defendants engaged in a civil conspiracy to violate his

rights are wholly speculative and unsupported.

Plaintiffs conspiracy claims.

Accordingly, the Court will dismiss

Dismissal Without Leave to Amend

Because the defects in the Complaint cannot be corrected, the Court will dismiss the

Complaint without leave to amend.

IT IS ORDERED:

(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

(2)

As required by the accompanying Order to the appropriate government

agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee

of $20.00.

(3)

The Complaint (Doc. 1) is dismissed for failure to state a claim pursuant to

28 U.S.C. § 1915A(b)(l), and the Clerk of Court must enter judgment accordingly.

(4)

The Clerk of Court must make an entry on the docket stating that the

dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).

(5)

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

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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 17th day of October, 2019.

Honorable RanerC. Collins

Senior United States District Judge

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• 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Josh Albritton,

Plaintiff,

Mark Bmovich, et al.,

NO. CV-19-00499-TUC-RCC (P)

JUDGMENT IN A CIVIL CASE

Defendants.

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

October 17, 2019, Plaintiff to take nothing, and the complaint and action are dismissed

with prejudice for failure to state a claim. This dismissal may count as a “strike” under

28 U.S.C. § 1915(g).

Brian D. Karth

District Court Executive/Clerk of Court

October 17, 2019

s/ Ortiz

Deputy Clerk

eh y. £)

Additional material

from this filing is

available in the

Clerk's Office

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