Appendix — Tripati v. United States (No. 07-807)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

A # Supreme Court US.

07-807 JUN 2- 2007

(2 OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED S12a'1rES

)

ANANT KUMAR TRIPATI, )

Petitioner, )

)

UNITED STATES COURT OF APPEALS FOR )

THE NINTH CIRCUIT, GUNN McKAY; DEAN )

CHATFIELD; DONALD CONRAD; MARICOPA )

COUNTY ATTORNEY; COUNTY OF MARICOPA; )

TERRY BLAKE; RONALD HARRIS; DICK MESH; )

GERALD GRANT; RICHARD M. ROMLEY; )

TERESA ARCHULETA; VINCENT H. TOLINO; | )

ESTATE OF TERESA ARCHULETA; ED KING; )

BETSEY BAYLESS; TOM RAWLES; DON )

STAPLEY; MARY ROSE WILCOX; DORA )

SCHRIRO, ADOC DIRECTOR; TERRY GODDARD )

ATTORNEY GENERAL ARIZONA; MICHAEL )

MUKASEY, ATTONEY GENERAL UNITED )

STATES )

Respondents, )

)

APPENDIX IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VOLUME ONE OF THREE

ANANT KUMAR TRIPATI

P.O. BOX 70662,

PASADENA, CA 91117

(626)796-2231,

PETITIONER PRO PER

Appendix

03/09/07 Order Denying Mandate Recall

04/22/07 Order Denying Motion to Abate Time

11/03/06 Decision Court Appeals

09/16/04 Order Denying 144 Motion

10/16/03 Decision, Judgment

10/16/03 Order

09/27/04 Order Denying Reconsideration

10/26/93 Order Denying Summary

Judgment

03/28/94 Order Adopting Stipulation

04/08/94 Order Adopting Stipulation

03/30/05 Order Denying Judgment

On Pleadings

09/30/96 Denial of Summary Judgment

01/22/97 Denial of Heck

04/29/97 Denial of Reconsideration

09/16/07 Denial of Reconsideration

. 70

. 74

12/04/01 Screening Order

04/22/02 Screening Order

07/15/02 Report

06/11/03 Order Adopting Report

06/11/03 Order

06/22/04; 455 Order

01/10/02; Fifth Amended Complaint

06/23/92: Return to Search Warrant

ARVITA Missing Software

Joint Pretrial Order

Transcript of Pretrial Conference

Motion to Recall Mandate

Petition for Rehearing and Hearing En Banc

02/24/04 Order

03/08/04 Mandamus

Petition to Recall

Refusal to Submit Petition to Recall

01/28/04 Order

03/21/03 Order

12/23/03 Order

Report and Recommendation

Habeas Corpus

04/06/95 Letter By Victim To

Arizona Attorney General

09/10/96 Victim's Affidavit

07/12/93 Letter Witness Tampering

06/16/93 Memo Falsifying Evidence

08/15/1994 Interview

Memos on Lost Evidence

Memo Terry Stewart

Memo on Falsifying Evidence

Inmate Response Letter

Affidavit of Witness

Report On Judicial Misconduct

12/20/06, Memo Doc,

Pp. 406

Pp. 420

Pp. 432

Pp. 447

Pp. 459

Pp. 461

Pp. 464

Pp. 465

Pp. 468

Pp. 475

Pp. 477

Pp. 479

Pp. 48]

Pp. 482

Pp. 483

Pp. 485

Pp. 492

10/29/99 ADOC Report Pp. 497

Affidavit Judy Gabbert Pp. 499

Appeals Order Pp. 501

Court Orders Denying Relief Pp. 503

11/04/02 Minute Order Pp. 507

09/02/03 Minute Order Pp. 509

11/23/04 Minute Order Pp. 511

10/14/05 Minute Order Pp. 513

Inmate Response Letter Pp. 515

Doc Memo Pp. S17

Doc Inmate Letter Pp. 519

08/12/99, Inmate Grievance, Pp. 521

08/30/99, Inmate Grievance Inv. Report Pp. 524

08/31/99, ADOC Inmate Grievance, Pp. 526

05/01/98, ADOC Property Release Pp. 530

Rule 59 Motion To Vacate Judgment Pp. 531

Request for Certificate Of Appealability Pp. 547

03/30/05 Order Pp. 590

02/28/06 Order

11/22/02 Order

01/03/03 Order Judicial Reform

Call To Investigate Ninth Circuit

Proposition

Tripati v. Schiro

Writ of Mandamus

Writ of Mandamus Denied

Garcia Letter

Supreme Court Letter 1

Supreme Court Letter 2

Supreme Court Letter 3

Pp. 591

Pp. $92

Pp. 600

Pp. 604

Pp. 607

Pp. 615

Pp. 625

Pp. 627

Pp. 637

Pp. 639

Pp. 641

Pp. 643

Pp. 645

FILED COPY

MAR 09 2007

U.S. COURT OF

APPEALS CLERK

IN THE UNITED STATES COURT OF APPEALS

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 04-17148

)

Anant Kumar Tripati, )

Plaintiff, )

Vv. )

) ORDER

Gunn McKay, et al., )

Defendants, )

)

CASE NO: No. 04-17148

D.C. Nos.

CV-94-00170-ROS

CV -94-00504-ROS

CV-95-00702-ROS

District of Arizona, Phoenix:

Before: O'CONNOR, RYMER., and THOMAS, Circuit

Judges.

On December 20, 2006. the Court issued an order

denying abatement of time for appellant to file a

petition for rehearing en bane. On January 11, 2007,

the mandate issued. The Court received appellant's

motion to reconsider the order of December 20,

2006. That motion is denied. The Court also

received appellant's motion to recall the mandate.

That motion is also denied.

The Court will entertain no further motions on this

closed case.

The Honorable Sandra Day O'Connor, Retired

Associate Justice for the Supreme Court, sitting by

designation.

FILED COPY

APRIL 22, 2007

US COURT APPEALS

UNITED STATES COURT OF APPEALS

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 04-17148

)

Anant Kumar Tripati, )

Plaintiff, )

Vv. )

) ORDER

Gunn McKay, et al., )

Defendants, )

eee

D.C. Nos.

CV-94-00170-ROS

CV-94-00504-ROS

CV-95-00702-ROS,

Before: O'CONNOR,* RYMER, and THOMAS,

Circuit Judges.

The appellant's motion to abate time in order to file a

petition for rehearing and/or petition for rehearing en

banc is DENIED.

The Honorable Sandra Day O'Connor, Associate Justice

for the Supreme Court of the United States (Ret.),

sitting by des ynatior

FILED COPY

NOV 03 2006

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 04-17148

Anant Kumar Tripati,

Plaintiff,

Vv.

GUNN MCKAY; DEAN CHATFIELD;

DONALD CONRAD, Maricopa County

Attorney; COUNTY OF MARICOPA; TERRY

BLAKE; RONALD HARRIS; RICHARD MESH;

GERALD GRANT; RICHARD M. ROMLEY;

TERESA ARCHULETA; VINCENT EH. TOLINO;

ESTATE OF TERESA ARCHULETA,

ED KING; BETSEY BAYLESS; TOM RAWLES;

DON STAPLEY; MARY ROSE WILCOX,

ee i a a a a a a oe

D.C. Nos.

CV-94-00170-ROS

CV-94-00504-ROS

CV-95-00702-ROB,

Appeal from the United States District Court

for the District of Arizona,

Roslyn 0. Silver, District Judge, Presiding

This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except

as provided by 9th Cir. R. 36-3.!

Submitted October 26, 2006**San Francisco, California

Before: O'CONNOR, Associate Justice, Retiree",

RYMER, and THOMAS, Circuit Judges.’

Anant Kumar Tripati appeals the district

court's decision dismissing his pro se civil rights

action against Maricopa County and _ various.

Maricopa County officials. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm. Because

the parties are familiar with the factual and

procedural history of this case, we will not recount it

here.

This panel {unanimously finds this case

suitable for decision without oral

argument. See Fed. R. App. P. 34(a)(2).

The Honorable Sandra Day O'Connor,

Associate Justice for the Supreme Court

of the United States (Ret.), sitting by

designation.

BREST AVAILABLE COPY |

The district court correctly held that Tripati's

federal claims—only one of which he asserts on

appeal—were barred under Heck v. Humphrey, 512

U.S. 477 (1994). Tripati argues that the district court

erred by holding that Tripati's illegal search and

seizure claim was barred by Heck. If "a judgment in

favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence," the complaint

must be dismissed. Heck, 512 U.S. at 487. Because

evidence obtained in the allegedly illegal search and

seizure was used for his conviction, the district court

did not err in barring his Fourth Amendment claim

under Heck. See Harvey v. Waldron, 210 F.3d 1008,

1015 (9th Cir. 2000) (interpreting Heck as precluding

any such claim).

I].

As to the non-federal claims, we conclude that

the district court did not make impermissible

credibility and evidentiary determinations in

granting judgment as a matter of law in favor of the

defendants. In rendering judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50, a

district judge "must draw all reasonable inferences in

favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000). However, to defeat a judgment as a

matter of law, "the nonmoving party must come

forward with more than a scintilla of evidence." See

Miller _v. Glen Miller Prods., Inc., 454 F.3d 975, 988

(9th Cir. 2006) (citing Anderson v. Liberty Lobby, Inc.,

A77 U.S. 242, 252 (1986)). Here, the defendants have

offered an overwhelming amount of evidence to refute

Tripati's allegations and to substantiate that the

search and seizure was the culmination of an

extensive investigation into Tripati's fraudulent

practices—an investigation that ultimately led to a

criminal conviction. ‘'ripati's conclusory statements

and self-serving declarations are too speculative to

survive a motion for judgment as a matter of law. See

United States v. Wilson, 881 F.2d 596, 601 (9th Cir.

1989). Thus, the district court did not err in granting

judgment as a matter of law for each of his claims.

We conclude that any error that the district

court committed by granting judgment as a matter of

law pursuant to Federal Rule of Civil Procedure 50

during the pretrial phase of the proceedings, see

McSherry v. City of Long Beach, 423 F.3d 1015, 1019

(9th Cir. 2005), was harmless because Tripati was

afforded ample opportunity to respond to _ the

deficiencies undergirding the court's judgment as a

matter of law, see id., at 1021 (the purpose of Rule 50 is

to afford the non-moving party an “opportunity to

present evidence, and the court must evaluate the

evidence in order to grant a motion under Rule 50");

see also Waters v. Young, 100 F.3d 1437 (9th Cir.

1996) (a "major purpose" of a motion under Rule 50 is

to give the non-moving party notice, and opportunity

to cure, deficiencies of proof).

Given this holding, we need not reach any of

the other claims of error asserted by Tripati as to

the non-federal claims.

III.

Tripati also contends on appeal that the district

court erred in denying his request for a Franks

hearing, and in preciuding the admission of Teresa

Archuleta's statements. There is no basis in the

record to show that Tripati ever requested a Franks

hearing, or that the district court refused to admit

statements of Teresa Archuleta.

IV.

Finally, Tripati argues that Judges Silver and

Strand abused their discretion in denying Tripati's

motion to recuse presiding Judge Silver, pursuant to 28

U.S.C. § § 455, 144. In order to prevail on a motion for

recusal, a petitioner must show either extrajudicial bias

or a deep-seated unequivocal antagonism toward the

petitioner. Liteky uv. United States, 510 U.S. 540,

554-55 (1994). Because Tripati demonstrated

neither, the district court judges did not abuse their

discretion in denying these motions.

AFFIRMED.

FILED COPY

SEP 16 2004

CLERK S DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

No. 94-0170-PHX-

ROS (DKD)

Anant Kumar Tripati,

Plaintiff,

Vv.

ORDER

Gunn McKay, et al.,

Defendants,

at Sail Sie Nae” eet at Sa” Neat Nee

Pending before the Court is Plaintiff Anant

Kumar Tripati's Motion for Change of Judge for Cause

pursuant to 28 U.S.C. § 144 [Doc. # 575], which was

referred to this Court for decision. Having considered

Plaintiffs motion, along with the attached affidavit and

transcript, Defendants' Response, Plaintiff's Response

(Reply), Piaintiffs Supplemental Brief, Defendants’

Response and Plaintiffs Reply thereto, as well as

pertinent portions of the record and the applicable law,

the Court now rules.

A. Background

On December 23, 2003, Plaintiff filed a Motion

for Change of Judge for Cause pursuant to 28 U.S.C. §§

144 and 455, alleging that Judge Roslyn O. Silver

“acted as counsel for the defendants" in the above-

entitled matter and requesting that she be disqualified

and that the case be reassigned to another judge. In an

Order filed on June 22, 2004, Judge Silver found that

Plaintiff had not established any basis for recusal

under § 455' and therefore denied the Motion for

Change of Judge pursuant. to 28 U.S.C. § 455.

Judge Silver also considered Plaintiffs Motion for

Change of Judge under 28 U.S.C. § 144. 3Pursuant to

28 U.S.C. § 455 provides in pertinent part:

(a) Any justice, judge, or magistrate of the United

States shall disqualify himself in any

proceeding in which his impartiality might reasonably

be questioned.

(b) He shall also disqualify himself in the following

circumstances: (1) Where he has a personal bias or

prejudice concerning a party, or personal knowledge of

disputed evidentiary facts concerning the proceeding[.]

Whenever a party to any proceeding in a district

court makes and 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, such judge shall proceed no

further therein, but another judge shall be assigned to

hear such proceeding.

The affidavit shall state the facts and the reasons for

the belief that bias or prejudice exists, and shall be

filed not less than ten days before the beginning of the

term at which the proceeding is to be heard, or good

cause shall be shown for failure to file it within such

time. A party may file only one such affidavit in any

case. It shall be accompanied by a certificate of record

stating that it is made in good faith.

the requirements of that subsection, Judge Silver

assessed the sufficiency of Plaintiffs affidavit and found

it to be inadequate. Although Judge Silver was not

required to proceed any further under § 144, she

nevertheless ordered that Plaintiffs motion under § 144

be heard by another district judge, giving Plaintiff yet

another opportunity for review. Accordingly, this Court

will now review the merits of Plaintiffs motion.

B. Discussion

In his Motion for Change of Judge, Plaintiff

contends that Judge Silver demonstrated bias and

prejudice against him based on events occurring at the

September 17, 2003 Final Pretrial Conference, at the

close of which Judge Silver granted judgment as a

matter of law for Defendants. In his affidavit

supporting his motion, Plaintiff alleges that Judge

Silver (1) "acted as the lawyer for the defendants,"

"asked the questions," and then failed to allow him to

answer fully; (2) expressed "hostility" and "bias" by her

"refusal ... to review {Plaintiffs] motions in limine"; (3)

was "so hostile" that she failed to rule consistently with

her prior decisions in the present case; and (4) was

"biased and hostile" based on Plaintiffs "personal

experience" and his review of her decisions in other

cases.

The standard for disqualification under 28

U.S.C. § 144 is “whether a reasonable person with

knowledge of all the facts would conclude that the

judge's impartiality might reasonably be questioned."

Mayes v. Leipziger, 729 I'.2d 605, 607 (9th Cir. 1984)

(quoting United States v. Nelson, 718 F.2d 315, 321

(9th Cir. 1983)). "The alleged prejudice must result

from an extrajudicial source; a judge's prior adverse

ruling is not sufficient cause for recusal." United States

v. Studley, 783 F.2d 934, 939 (9th Cir. 1986).

First, Plaintiffs allegations are not extrajudicial

because they relate to Judge Silver's performance while

presiding over the case and to her adverse ruling. See

id. Next, Plaintiffs claims that Judge Silver was

"hostile," even if true, do "[piJlot establish[] bias or

partiality . ." See Liteky v. United States, 510 U.S. 540,

555-56 (1994). This Court has reviewed the transcript

of the hearing in question and finds no support for

Plaintiffs allegations of bias and prejudice. "A judge's

ordinary efforts at courtroom administration

remain immune" from challenge. Id. at 556.

Next, with respect to Plaintiffs allegation that

Judge Silver refused to review his motions in limine,

Plaintiff provides no support for said allegation.

Indeed, contrary to this assertion, in her October 16,

2003 Order granting Defendants' Motion for Judgment

as a Matter of Law, Judge Silver specifically states that

she had reviewed all pending motions, "including

motions in limine and objections... ." [Doc. # 562]

Furthermore, Judge Silver's ruling was _ not

based solely on Plaintiffs answers to questions posed at

the Final Pretrial Conference, but also on her review of

"all the pleadings in connection with the trial,

including the Joint Pretrial Order and attachments,

and of all pending motions (including motions in limine

and objections), responses, statements of fact and

exhibits thereto.”

C. Conclusion

Based on the foregoing, this Court concludes that

Plaintiffs allegations would not lead a_ reasonable

person to conclude that Judge Silver's impartiality

might reasonably be questioned. Accordingly,

IT IS ORDERED denying Plaintiffs Motion for

Change of Judge for Cause pursuant to 28 U.S.C. § 144

[Doc. # 575].

DATED this 14th day of September, 2004.

S/D_

~ ROGER STRAND

US District Court Judge

FILED COPY

OCT 16, 2003

CLERK S DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

Gunn McKay, et al.,

Defendants,

) No. 94-0170-PHX-

) ROS (DKD)

Anant Kumar Tripati, )

Plaintiff, )

Vv. )

) ORDER

)

On June 13, 2003, Defendants lodged a Motion

for Summary Judgment which in major part raised the

same allegations made in Defendants' motions in

limine. However, because the Motion for Summary

Judgment was lodged beyond the date for filing, the

Court denied it by minute Order of June 16, 2003. That

decision, however, did not preclude the Court from

hearing the same issues if properly raised on motion in

limine.

After review of all the pleadings in connection

with the trial, including the Joint Pretrial Order and

attachments, and of all pending motions (including

motions inlimine and objections), responses, statements

of fact and exhibits thereto, the Court held the Final

Pretrial Conference on September 17, 2003. After

hearing from the parties at the conference, the Court

granted Defendants’ Motion for Judgment as a matter

of law pursuant to Rule 50(a), Fed.R.Civ.P. The Court

has also considered Plaintiffs Motion for New Trial,

which, at Plaintiffs request, the Court has treated as a

Response to Defendants’ Motion for Judgment as a

matter of law (Doc. No. 557 at 3). The federal claims

remaining at the conference were Counts 1, 5, 14, 16,

17, 19, 29, 31, 37 and 43. Remaining state law claims

were Counts 2, 3, 6, 9, 10, 21 and 24. The Court's

rulings at the conference regarding all claims are

memorialized in this Order.

At the conference, Plaintiff was given the

opportunity to set forth both legal and evidentiary

bases to establish that he has a viable cause of action

on each count. The Court found that Plaintiffs federal

claims are barred by Heck v. Humphrey, 512 U.S.

477,114 S.Ct. 2364 (1994). Additionally, the Court

found that the federal claims do not involve violations

of the United States Constitution or material violations

of federal statutes. The Court further found, after

reviewing the motions in limine and responses and

hearing from Plaintiff; that taking all reasonable

inferences in Plaintiffs behalf his evidence is

insufficient as a matter of law for a jury to find in his

favor on any of his federal or state law claims.

I. Federal Claims Barred by Reck sv.

Humphrey

A. Section 1983 Claims

The Supreme Court in Heck v. Humphrey directed

lower courts to consider whether or not a judgment in

favor of a plaintiff in a § 1983 action "would necessarily

imply the invalidity of his conviction or sentence." 512

U.S. at 487,114 S.Ct: at 2372. If it would, the § 1983

action must be dismissed unless the plaintiff can prove

that the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such

determination, or called into question by a federal

court's issuance of a writ of habeas corpus, 28 U.S.C. §

2254. a., 512 U.S. at 486-87, 114 S.Ct. at 2372. On the

other hand, if a judgment in favor of the

plaintiff would not necessarily imply the invalidity of

the plaintiff's conviction or sentence,

then the action should be allowed to proceed unless

there exists some other bar to the © suit.

512 U.S. at 487,114 S.Ct. at 2372-73. Where a Plaintiff

has been convicted, and where

a constitutional issue which is inextricably interrelated

to the Plaintiffs issue would resolve

the matter had it been appealed and reversed by the

appellate court, then no basis exists’ for

a civil cause of action under Heck. This determination

is made without reference to whether

the constitutional issue was actually raised by the

defendant in his criminal trial, as the existing outcome

of Plaintiffs state appeals process is not an element of

the test for determining whether a claim is cognizable

under Beck. Rather, the Court looks to what the state

court would have held if it had been presented with the

constitutional issue. If a judgment in favor of Plaintiff

would "necessarily imply the invalidity of his

conviction,” then he may not bring his claim under §

1983; conversely, § 1983 claims should be allowed to

proceed if success on them would not necessarily imply

the invalidity of an outstanding criminal judgment

against Plaintiff. a, 512 U.S. at 487, 114 S.Ct. at 2372-

73.

Plaintiffs constitutional focus is that he was the

target of a racially based selective prosecution, and this

issue would have been outcome-determinative in his

criminal prosecution. Although Plaintiff argued at the

conference that the claims in this action have no

bearing on his conviction, it is evident that his civil

rights claims cannot be separated from his criminal

prosecution, both of which allegedly arose from

Defendants' racial animus. Plaintiffs artful attempts to

portray the claims in this case as unconnected to his

criminal convictions' do not negate his _ position

throughout this litigation that the search and seizure

at his office were the result of the Maricopa County

Attorney's Office's desire to "target" him at least in part

because he is a minority. Indeed, Plaintiff proposed to

testify at trial that:

Richard Mesh and Gerald Grant according to

these documents play critical roles.. . They screen all

complaints, in their capacity as supervisory staff. They

then manufacture whatever needs to be manufacture,

to make certain that the wrong that the employee of

Maricopa County and Maricopa County Attorney's

Office committed is covered up. As a part of the coverup

they, according to the documents, offer a_ citizen,

especially a racial minority, the chance to either plead

guilty or to settle the forfeiture action. these documents

also showed that when racial minorities declined to

settle, they used the complete resources of Maricopa

County and Maricopa County Attorney's Office to fight

the case to the hilt. Racial minorities like me, as

evidenced by the documents, do to lack of money,

giveup and put up with the misconduct spending years

in prison. I am spending 52.5 years just because of this

practice. (Dec. 16, 2002 Affidavit of A.K. Tripati, Doc.

No. 472 Ex. 11119) (spelling and punctuation as in

original, emphasis added). According to this affidavit, it

was precisely Defendants' alleged policy of selectively

prosecuting minorities that led both to Plaintiffs

conviction and to the civil rights violations alleged in

this action.

Plaintiff further argues that his claims, all of which

involve the alleged illegal search and seizure, are not

barred because the state court of appeals found that

there was “overwhelming" evidence of Plaintiffs guilt.

Because the evidence against him was "overwhelming,"

Plaintiff argues, any evidence obtained from the

search and used against him at trial would not have

altered his conviction. However, Plaintiff did not raise

at his criminal trial a selective prosecution defense or

any other defense based on his race. Therefore, the

state court of appeals could not have considered the

issue of Defendants' alleged racial bias. The state court

determination that the evidence against Plaintiff was

"overwhelming" does not control whether Plaintiffs civil

claims are barred by Heck because the issue Plaintiff

raises here is a_ substantial one, LQ, whether

Defendants prosccuted him based on impermissible

racial grounds.

The right to be free from racial discrimination in

.a criminal prosecution is a fundamental constitutional

right. The Supreme Court has repeatedly stated that

prosecutorial discretion cannot be exercised on the

basis of race. Wayte v. United States, 470 U.S., at 608,

105 S.Ct., at 1531; United States v._ Batchelder, 442

U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); Oyler v.

Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

Nor can a prosecutor exercise permptory challenges on

the basis of race. Batson v. Kentucky, 476 U.S. 79, 106

S.Ct. 1712, 90 L.Ed.2d 69 (1986); Swain v. Alabama,

380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

MoCleskey v. Kemp, 481 U.S. 279, 309 n.30, 107 S.Ct.

1756, 1776 n.30 (1987). Selective prosecution claims

are analyzed "according to ordinary equal protection

standards." Wayte_v. United States, 470 U.S. 598, 608,

105 S.Ct. 1524, 1531 (1985). Accordingly, to

establish selective prosecution, a defendant must show

that others similarly situated have not been prosecuted

and that the prosecution is based on an impermissible

motive. United States v. Ness, 652 F.2d 890, 892 (9th

Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976 (1981).

In this case, Plaintiff claims minorities were "targeted"

for prosecution and asset forfeiture, while "|wyhite's

(sic) in greater part, with a great deal of money, were

not targeted and were let go"

At the conference, Plaintiff said his position is that his

race played no part in Defendants’ decision to

improperly seize his property, but that they seized the

property to initiate a forfeiture and to retaliate against

Plaintiff for his challenges to their illegal

discriminatory actions against others.

(Doc. No. 472 Ex. 1 at 4-5 1 16). Plaintiff provides

allegations which meet the first prong of a selective

prosecution claim. Plaintiff also provides allegations to

fulfill the second prong in his claims that he was

targeted because of his race. Thus, Plaintiff established

a colorable claim for selective prosecution. If it were

determined that Defendants exercised their

prosecutorial discretion on the basis of race, then the

remedy would be reversal of Plaintiffs conviction.

Batson, 476 U.S. at 100, 106 S.Ct. at 1725 (a defendant

who can demonstrate that the prosecution exercised its

peremptory challenges in a racially discriminatory

manner is entitled to a reversal of his conviction). It is

not necessary for the prosecutorial discretion to have

been based exclusively on racial considerations to be

unconstitutional. A civil rights plaintiff is not required

to prove that the challenged action rested solely on

racially discriminatory purposes. . . . [RJacial

discrimination is not just another competing

consideration. When there is'- proof that a

discriminatory purpose has been a motivating factor in

the decision, this judicial deference is no longer

justified. Arlington Heights v. Metro. Hons. Dev.

Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563 (1977)

(footnotes omitted).

Accordingly, Plaintiffs § 1983 clatms (Counts 1,

5, 14, 16, 17, 19, 29, 31, and 48) must be dismissed

without prejudice until such time as _ Plaintiffs

conviction has been reversed on direct appeal,

expunged by executive order, declared invalid by a

state tribunal, or called into question by a federal

court's issuance of a writ of habeas corpus.

B. Fifth Amendment Claim Would Have Been

Barred by fled;

Plaintiffs Fifth Amendment claim (Fifth

Amended Complaint., Doc. No. 376, Count Twelve) was

dismissed by the screening Order for failure to allege

that Plaintiffs property was seized for public use4 (Doc.

No. 380 at 5). However, the Court briefly notes that

this claim also would have been barred under Heck.

This Court has_ previously considered whether

: The final Clause of the Fifth Amendment provides:

"nor shall private property be taken for public use without

just compensation"; this applies to the states as well as to

the federal government. Webb's Fabulous Pharmacies, Inc.

v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450 (1980).

constitutional claims other than those under the

Fourth Amendment might fall within the exception to

the Neck doctrine. Observing that the Supreme Court

in footnote 7 had cited to Arizona v. Fulminante, 499

US. 279, 307-08,111 S.Ct. 1246 (1991), which held that

the harmless error doctrine can apply to the admission

of a coerced confession under the Fifth Amendment,

this Court concluded that "[t]he analysis of whether the

Heck bar applies depends not on the constitutional

claim alleged, but on whether the claim, if successful,

would invalidate the underlying criminal conviction."

Schwartz v. City of Phoenix, 83 F.Supp.2d 1102, 1105

n.2 (D.Ariz. 2000). Here, a claim under the [ifth

Amendment for taking without just compensation

would have been based on the same facts as Plaintiffs

other § 1983 claims and, like those claims, would have

necessarily implied the invalidity of Plaintiffs

conviction and thus been barred by Heck.

C. Conspiracy Claim Under 42 U.S.C. §

1985(3) Barred by Heck

Although the Supreme Court in Heck addressed

only. whether a § 1983 claim for damages could be

brought, the same principle applies to the viability ofa

§ 1985(3) claim for damages. ate Duarnutef v. Morris,

956 F.Supp. 1112, 1117 (S.D.N.Y. 1997) (plaintiffs §

1985(3) claim would necessarily call into question the

validity ofhis criminal prosecution); Horton _v.

Marovich, 925 F.Supp. 532, 537 (14.D.111. 1996). To

allow Plaintiff to proceed on his damages claim for a

conspiracy even though Heck bars his claim for

damages due to violation of the constitutional rights

forming the basis of the conspiracy, would be

inconsistent with Heck's rationale.Heck cannot be read

to allow a plaintiff to pursue a civil rights damages

claim for a violation of conititutional rights when

without the allegation of conspiracy damages would not

be available for the alleged violation.

Accordingly, Count 37 for conspiracy to deny

civil rights under 42 U.S.C. § 1985(32) must also be

dismissed without prejudice until such time as

Plaintiffs conviction has been reversed on direct appeal,

expunged by executive order, declared invalid by a

state tribunal, or called into question by a federal

court's issuance of a writ of habeas corpu

IL Plaintiff Has No Sufficient Evidentiary

Basis for Any Claim

After reviewing Plaintiffs proposed trial exhibits, which

are included in Defendants’ Motion in Limine Re:

Plaintiffs Proposed Trial Exhibits (Doc. No. 472, 3-inch

black binder) and hearing from Plaintiff at the

conference regarding the admissible evidence the Court

found that Plaintiff has an insufficient evidentiary

basis for a reasonable jury to find in his favor on any of

his claims, as set forth below.

A. Federal Claims

Plaintiff has not established that there is

sufficient admissible evidence for a jury to determine,

taking into account all reasonable inferences in

Plaintiffs favor, that the acts and omissions alleged in

Counts 1, 5, 14, 16, 17, 19, 29, 31, 37 and 43 constitute

violations of his federa! civil rights. All of these claims

involve the execution of a search warrant on Plaintiffs

place of business in California, and the Court found: (1)

there was probable cause for Plaintiffs arrest (Arrest

Warrant, Doc. No. 472 Ex. 14); (2) the search warrant,

which was based on the arrest warrant, was valid and

accurate on its face; (3) all property seized can be said

to have been seized as potentially related to the crimes

for which Plaintiff was arrested and of which he was

convicted, regardless of whether any of that property

was actually used as evidence in his criminal trial; (4)

Plaintiff has no legally sufficient evidence that the

allegedly seized property was not within the scope of

the warrant; and (5) Plaintiff consented to the

Defendants’ alleged taking of his property.

As to Count 14 for violation of the federal

extradition statute, 18 U.S.C. § 3182, and the Uniform

Criminal Extradition Act, Cal. Penal Code §§ 1547-

56.2, any such violation would have been held harmless

error had it been raised in the criminal trial since there

was probable cause to arrest and extradite Plaintiff.

Plaintiff has no legally sufficient and admissible

evidence that his extradition from California to Arizona

violated his constitutional rights. As to his claims for

supervisory liability for alleged violations, Plaintiffhas

no legally sufficient and admissible evidence that any

official policy, practice, custom or procedure directly

caused the violation of his constitutional rights. As

stated above, Plaintiff cannot establish by sufficient,

admissible evidence that any constitutional violation

occurred in the first place. Further, Plaintiff has no

sufficient, admissible evidence establishing a causal

link between any official policy, practice, custom or

procedure and any _ alleged violation of his

constitutional or statutory rights.

The Court determined also that Plaintiff would

be unable to prove by sufficient, admissible evidence

the personal participation of many of the Defendants in

many of the alleged violations of his civil rights.

B. State Law Claims

1. No Jurisdiction Over State Law Claims

Plaintiffs state law claims are before the Court

based on diversity jurisdiction. Jitle 28 U.S.C. § 1332

governs diversity jurisdiction and requires a minimum

amount in controversy of $75,000. Plaintiff alleges he is

a citizen of Fiji and Defendants are citizens of Arizona.

Lawful, permanent resident aliens are citizens of their

home country and, for diversity purposes, of the state of

domicile. Karazanos v. Madison Two Assocs., 147 F.3d

624, 627 (7th Cir. 1998); 28 U.S.C. § 1332(a). Although

Plaintiff does not specifically allege that he was

domiciled in California at the time he filed this action,

the facts of this case indicate that Plaintiff lived and

worked in California at the time of his arrest. Thus,

Plaintiff has established that the parties have complete

diversity of citizenship.

However, at the conference the Court found that

Plaintiffs proof of damages is not supported by the law

nor is there sufficient evidence for a reasonable jury to

find, (1) that a constitutional violation occurred, (2)

that Plaintiff has met the $75,000 minimum amount in

controversy requirement, and (3) that Plaintiff had

suffered any damages. Accordingly, the Court lacks

jurisdiction over Plaintiffs state law claims.

2. Insufficient Evidence to Establish State

Law Claims

Even assuming that the Court did have

jurisdiction over Plaintiffs state law claims, the Court

found that Plaintiff does not have a_=e sufficient

evidentiary basis for a reasonable jury to find in his

favor on liability issues on the state law claims in

Counts 2, 3, 6, 9, 10, 21 and 24. Assuming the truth of

the allegations that the items at issue in fact existed

and were seized, Plaintiffs e idence will not support a

claim for common law theft or conversion because he

voluntarily provided the officers with the items which

he now complains should not have been seized.

Ill. Plaintiffs Motion for New Trial

Plaintiff moves for a new trial, arguing, inter

alia, that this Court misapplied the law,

misinterpreted his claims, and failed to read the record

(Doc. No. 557). Plaintiff contends that the harmless

error doctrine should not have been applied to this civil

case, where harmless error does not apply to the

violation of constitutional rights (jsi, at 3).

The Court did not apply the harmless error

doctrine to Plaintiffs § 1983 claims. Instead, the Court

examined the applicability of harmless error and of

gerps. (or structural) error in the discussion of

Plaintiffs claims, all arising out of the allegedly invalid

search and seizure, because it was necessary to

determine whether these claims were barred by their

relation to his criminal conviction. am supra.

Plaintiff also contends that the Court did not rule on

several of his claims and asks for a ruling on those

claims (Doc. No. 557 at 5-7). To the contrary, the Court

ruled at the conference that all federal law claims and

all state law claims are dismissed for the reasons set

out in this Order.

Accordingly, Plaintiffs Motion for New Trial

(Doc. No. 557) will be denied.

IT IS ORDERED:

That Defendants’ Motion for judgment as a matter of

law pursuant to Rule 50(a), Fed.R.Civ.P. is GRANTED

because Plaintiff has no sufficient evidentiary basis for

a reasonable jury to find in his favor on any claim.

Plaintiffs claims and the Fifth Amended Complaint are

therefore DISMISSED in their entirety; Additionally,

and in the alternative, that Plaintiffs federal claims

(Counts 1,5,14, 16, 17, 19, 29, 31, 37 and 43) are

DISMISSED WITHOUT PREJUDICE until such time

as Plaintiffs conviction has been reversed on direct

appeal, expunged by executive order, declared invalid

by a state tribunal, or called into question by a federal

court's issuance of a writ of habeas corpus;

Additionally, and in the alternative, that Plaintiffs

state law claims (Counts 2, 3, 6, 9, 10, 21 and 24) are

DISMISSED for want of jurisdiction;

That Plaintiffs Motion for New Trial (Doc. No. 557) is

DENIED;

That all other pending motions are DENIED AS

MOOT; and

That the Clerk of Court shall enter judgment

accordingly.

DATED this 10th day of October, 2003.

S/D

ROSLYN O SILVER

United States District Judge

FILED COPY

OCT 16, 2003

CLERK S DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

Gunn McKay, et al.,

Defendants,

) No. 94-0170-PHX-

) ROS (MKD)

Anant Kumar Tripati, )

Plaintiff, )

Vv. )

) ORDER

)

Court Verdict(s). This action came before the Court

sitting without a jury. The issues have been heard and

reviewed, the Court now enters its verdict(s).

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 having granted

Defendants' Motion for judgment as a matter of law

pursuant to Rule 50(a), Federal Rules of CMI

Procedure because the Plaintiff has no sufficient

evidentiary basis for a reasonable jury to find in his

favor on any claim. Plaintiffs claims and the Amended

Complaint are therefore dismissed in their entirety

Additionally, and in the alternative, that Plaintiffs

federal claims (Counts 1, 5, 14, 16, 17, 19, 29, 31, 37

and 43) are dismissed without prejudice until such time

as Plaintiffs conviction has been reversed on direct

appeal, expunged by executive order, declared invalid by

a state tribunal, or called into question by a federal

court's issuance of a writ of habeas’ corpus.

Additionally, and in the alternative, that Plaintiff's

state law claims (Counts 2, 3, 6, 9, 10, 21 and 24) are

dismissed for want of jurisdiction. Plaintiff shall take

nothing.

DATED this 16* day of OCTOBER, 2003.

S/D

RICHARD H WEARE

US District Court Clerk

FILED COPY

SEPT 27, 2004

CLERK S DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

No. 94-0170-PHX-

ROS (DKD)

Anant Kumar Tripati,

Plaintiff,

Vv.

ORDER

Gunn McKay, et al.,

Defendants,

Plaintiffs Motion for Change of Judge (Doc. No.

575) having been denied by United States District Judge

Roger G. Strand (Doc. No. 593), the related motions to

reassign case and to direct the Clerk of Court to comply

(Doc. Nos. 589, 592) will be denied as moot. The Court

now considers the remaining pending motions.

A. Plaintiffs Motion for Reconsideration

Plaintiff moves for reconsideration of the Rulings

entered at the September 17, 2003 Final Pretrial

Conference and memorialized in the October 16, 2003

Order. ‘'he pending Motion for Reconsideration (Doc. No.

566) again urges the grounds presented in the Motion for

New Trial (Doc. No. 557), which was denied in the

October 16, 2003 Order (Doc. No. 562). The pending

Motion for Reconsideration will be denied.

Motions for reconsideration should be granted only

in rare circumstances. Defenders of Wildlife v. Browner,

909 F. Supp 1342, 1351 (D.Ariz. 1995).

"Reconsideration is appropriate if the district court (1)

is presented with newly discovered evidence, (2)

committed clear error or the initial decision was manifestly

unjust, or (3) if there is an intervening change in controlling

law." School Dist. No. 1 J. Multnomah County v. ACandS, Inc.

5 F.3d 1255, 1263 Qth Cir. 1993), cert. denied, 512 USS.

1236 (1994). The Court finds no clear error or manifest

injustice that would necessitate reconsideration of the

Order dismissing this action.

B. Other Pending Motions

Defendants move to strnke Plaintiffs Motion for New

Trial. Because Plaintiffs Motion for New Trial has already

been decided (see Doc. No. 562), Defendants' Motion to Strike

(Doc. No. 565) will be denied as moot.

Plaintiffs Motion to Judicially Notice Decisions (Doc.

No. 568) and Defendants' Motion to Strike Reply (Doc.

No. 577) will be denied as moot.

Pursuant to Local Rule 1.10(), Plaintiff has submitted

notices of pending matters and moved that the Court rule on

his motions. Because all pending matters are addressed by

this Order, Plaintiffs Motion to Decide Pending Matters

(Doc. No. 576), Motion for Ruling (Doc. No. 583), and

Motion for Ruling (Doc. No. 586) will be denied as moot.

IT IS THEREFORE ORDERED:

(1) That Plaintiffs Motion for

Reconsideration (Doc. No. 566) is denied;

(2) That Defendants’ Motion to Strike

Plaintiffs Motion for New ‘Trial (Doc. No. 565) is

denied as moot;

(3) That Plaintiffs Motion to Judicially

Notice Decisions (Doc. No. 568) is denied as

moot;

(4) That Defendants' Motion to Strke

Reply (Doc. No. 577) is denied as moot;

(5) That Plaintiffs Motion to Reassign Case to

Another Judge (Doc. No. 589) and Motion to Direct the

Clerk of Court to Comply With Document 588 and

Reassign Case at Random (Doc. No. 592) are denied as

moot; and

(6) That Plaintiffs Motion to Decide Pending Matters

(Doc. No. 576), Motion for Ruling (Doc. No. 583), and

Motion for Ruling (Doc. No. 586) are denied as moot.

DATED September 24, 2004.

S/D

MAR H MURUGUIA for

ROSLYN O SILVER

US DISTRICT COURT JUDGE

FILED COPY

OCT 26 1993

CLERK S DISTRICT

COURT CALIFORNIA

IN THE ‘UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

No. CV 93-2781 ER(B)

Anant Kumar Tripati,

Plaintiff,

VS.

Gunn McKay, et al.,

Defendants,

)

) ORDER

)

Plaintiffs Motion for Partial Summary

Judgment, came on for decision before the Magistrate

Judge on October 19, 1993, without oral argument. An

opposition and Reply was received. After careful

consideration of the papers heretofore filed, plaintiffs

Motion is hereby denied.

Summary judgment is authorized if the moving

party shows that there is no genuine issue as to any

material fact and the moving party is entitled to

judgment as a matter of law. See, Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986); Fed.R.Civ.P

56(c). Once the moving party has met this initial

burden the nonmoving party has the subsequent

burden of presenting significant probative evidence

tending to support its claim that matenal tnable issues of fact

remain. Id.

Plaintiff moves this Court for summary judgment based

on the following grounds: 1) defendants failed in their

answer to assert any affirmative defenses; 2) only defendants

Chatfield and Conrad filed an opposition to plaintiffs motion®; and 3)

defendants failed to file a statement of Genuine Issues of

Material Facts as required under Local Rule 7.14.22

By order dated October 5, 1993, the Magistrate Judge

allowed all defendants’ to file them First Amended Answer, which

contained affirmative defenses to all of plaintiffs allegations.

Furthermore, under the summary judgment rule, the party against

whom the motion is directed need not file any contravening

affidavits or other material, but is entitled to a denial of the motien

where the movant's papers are imsufficent on their face or themselves

demonstrate the existence of a material issue of fact. See Henry v.

Gill Industries, Inc., 983 F.2d 943, 949 (9th Cir. 1993). Hamilton

v. KeYstone Tankshin Cora, 539 F.2d 684, 686 (9th Cir.

1976)

The Magistrate Judge finds that on their face, plaintiffs

papers are insufficient and that genuine issue as to material facts exist

1 The Magistrate Judge agrees with Plaintiff that

no opposition was filed on behalf of Maricopa

county Attorney and Maricopa County.

Furthermore, the Magistrate judge notes that

Defendant's attorneys are guilty of sloppy

lawyering and that in the future if they are not

more careful, their actions may result in negative

consequences for their clients.

2 The fact that Defendants failed to comply with

local rule 7.14.2 is as another example of sloppy

lawyering.

and that plaintiff is not entitled to judgment as a matter oflaw. It is

therefore ordered that plaintiffs Motion for Partial Summary

Judgment be, and is hereby denied.

Dated: October 25, 1993.

VOLNEY V. BROWN, JR.

United States Magistrate Judge

FILED COPY

MAR 28, 1994

CLERK S DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

No. 94-0170-PHX-

ROS (DKD)

Anant Kumar Tripati,

Plaintiff,

Vv.

ORDER

Gunn McKay, et al.,

Defendants,

Nee eee eee ee ee”

Based upon the stipulation of the parties |[Docket # 79],

[TIS SO ORDERED that:

On or before March 30, 1994, Defendants

shall respond fully to all discovery pending as

of February 19, 1994, all objections to said

discovery having been waived

Jefendants shall respond in a timely manner

t any discovery requestae propounded by

ntiff within 3O days followiny receipt of

the response ordered in paragrapn |!

f } i Oraerec

by Defendants.

4. Plaintiffs Motion to Compel [Docket #75] is

denied without prejudice.

DATED this 17th Day of March 1994.

S/D

STEPHEN L VERKAMP

United State magistrate Judge

FILED COPY

MAR 28, 1994

CLERK S DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

No. 94-0170-PHX-

ROS (DKD)

Anant Kumar Tripati,

Plaintiff,

Vv.

ORDER

Gunn McKay, et al.,

Defendants,

weer ee Oe eee Ne Se”

ORDER ADOPTING STIPULATION

EXTENDING TIME FOR EXTENSION

AS STIPULATED BY THE PARTIES, IT IS

HEREBY ORDIERED THAT:

Defendants shall have to and including June 1,

1994 an whieh to comply wath Document 79. This

extension ois pranted as defendants have changed

counsel and at will take counsel about sixty daya to

fully comply Defendante shadl file notice of comphlance

bey <JPtanee PL 14

The Discovery cut off date was January 10, 1994, the

pre trial order is due May 18, 1994 and last date for

motions was March 11, 1994.

DATED: April 6, 1994

S/D

HON STEPHEN L VERKAMP

US MAGISTRATE JUDGE

FILED COPY

March 30 1995

CLERK US DISTRICT

COURT OF ARIZONA

IN THE UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

) No. CIV-94-0170-

) PHX-ROS

Anant Kumar Tripati, )

Petitioner )

vs. )

) ORDER

GUNN McKAY, et al., )

Respondents. )

)

:. INTRODUCTION AND BACKGROUND

Plaintiff, appearing pro se and_ presently

incarcerated at ASPC-Florence, has brought a 54 count

complaint pursuant to 28 U.S.C. §§ 1981, 1983, 1985(3)

and 1986. In his complaint, Plaintiff alleges various

constitutional violations arising out of events leading to

his arrest and conviction. Defendants have filed a

motion for judgment on the pleadings. Plaintiff has

filed a cross-motion for summary judgment. For the

reasons set forth below, Defendants motion will be

granted in part and denied in part, and Plaintiffs

motion will be denied.

HI. ANALYSIS

A. Motion for Judgment on the Pleadings

Defendants have filed a motion styled Motion for

Judgment on the Pleadings. A motion for judgment on

the .pleadings brought pursuant to Rule 12(c), Federal

Rules of Civil Procedure, challenges the legal

sufficiency of the opposing party's pleading. To make

such a determination, the truthfulness of the material

facts alleged in the responding party's pleading, and all

inferences reasonably drawn from that fact must be

construed in favor of the responding party. Norman v.

General Motors Corp., 628 F.Supp. 702, 703 (D.Nev.

1986). A judgment on the pleadings is not appropriate

where the complaint alleges facts, which if proved,

would permit recovery. Wager v. Elm, 575 F.2d 882,

884 (D.C. Cir. 197.6). A judgment on the pleadings

is appropriate only when there is "no unresolved issue

of fact and no question remains that the moving party

is entitled to judgment as a matter of law: Blankenship

v. Hearst Corp., 519 F2d 418, 423 (9th Cir. 1975).

Defendants have attached to their motion copies

of documents relating to criminal matters in Superior

Court involving Plaintiff. A court can take judicial

notice of matters of public record on a motion to

dismiss. Mack v. South Bay Beer Distributors. Inc., 798

F.2d 1279 (9th Cir. 1986). The Court finds that this

rule is equally applicable to a motion for judgment on

the pleadings.

B. Res Judicata and Collateral Estoppel

Defendants first argue that Counts. 1-14, 16, 29,

30, 36 and 50 of Plaintiffs Second Amended Complaint

are barred by the doctrines of res judicata and

collateral estoppel. Plaintiff contends that Defendants

waived this defense by failing to include it in their

answer to Plaintiffs Second Amended Complaint. It is

true that res Judicata and collateral estoppel are

affirmative defenses that must be specifically pled

pursuant to Rule 8(c), Federal Rules of Civil Procedure:

However, the Ninth Circuit has taken the position that

these defenses may be raised for the first time in a

motion for summary judgment where the Plaintiff has,

failed to show prejudice. See Camarillo v. McCarthy,

998 -F.2d 638 (9th Cir. .1993): The Court notes that

the parties previously entered into a_ stipulation

whereby Plaintiff agreed to withdraw his motion for

sanctions in exchange for allowing Defendant to file an

amended

answer not including the defenses of res judicata and

collateral estoppel. Consequently, there lies a potential

for prejudice. However, the Court is unable to

determine at this point in time

whether Plaintiff will suffer prejudice if Defendants are

now allowed to raise this defense because neither party

addressed this issuc.

Furthermore, although the Court can _ take

judicial notice of the California criminal* proceedings

involving Plaintiff, the Ninth Circuit has explained

that "before an action may be summarily dismissed on

the ground of res judicata the ends of justice require as

a minimum that-the defense of res judicata appear

6 Defendants did not plead these defenses in their original answer nor

in their Answer to Plaintiff's First Amended Complaint. Defendants did

include these defenses in their First Amended Answer to Plaintiff's First

Amended Complaint. Plaintiff then brought a * motion for sanctions pursuant

to Rule 11, Federal Rules of Civil Procedure, on the ground that. Defendants

did not conduct an adequate investigation before alleging these defenses.

The parties then stipulated that (1) Plaintiff could .file a second amended

complaint, (2) Plaintiff would Withdraw his motion for sanctions, and (3)

Defendants would file an answer only including the detenses set forth in

their ‘Answer to Plaintiff's Amended First Amended Complaint.

from the face of the complaint or that the record of the

prior case be received in evidence." Guam Investment

Company v. Central Building. Inc., 288 F.2d '19 (9th

Cir. 1961). In. this case, the defense of res judicata is

not apparent from the face of the complaint, and

Defendants have not provided the record of the prior

proceedings. Although the court in ‘Guam referred

only to the doctrine .of res judicata, this Court finds

that the "reasons for the rule in Guam ‘with respect to

dismissal on res judicata grounds are equally

applicable, to dismissal on the grounds of collateral

estoppel. Consequently, the Court will deny

Defendants' motion with respect to these defenses.

C. Plaintiff has not brought a claim against

the Maricopa County Board _ of

Supervisors.

Defendants contend that the Maricopa County

Board of Supervisors is statutorily immune from claims

such as Plaintiff brings. A review, of Plaintiff's Second

Amended Complaint confirms Plaintiff's assertion that

he has not sued the Maricopa County Board of

Supervisors.

D. Plaintiff's discrimination claims

Plaintiff contends that the individual

defendants, in accordance with the prevailing customs,

traditions and policies of the Maricopa County

Attorney's Office and Maricopa County, targeted

Plaintiff for criminal investigation and prosecution

because he is a member of a minority group and

conspired to deny him the equal protection of the law in

violation of 42 U.S.C 1981, 1985(3) and 1986.

To the extent that Defendants contend that

these counts should be dismissed on res judicata and

collateral estoppel grounds, that argument must fail for

the 'reasons set forth supra.

Defendants also contend that Plaintiff cannot

succeed on the theory that Defendants' infringed upon

his constitutional rights because of the establishment

of an unconstitutional policy.

Defendants cite Havnesworth v. Miller,. 820 F.2d

1245 '(D.C.Cir. 3.987) in which the court explained that

government officials may be held liable for damages for

constitutional infringements resulting from their

establishment of constitutional policies but the Plaintiff

must prove that the official against whom he is

asserting lability had the authority to formulate the

policy and exercised that authority to promulgate the

policy.The Court finds Havnesworth to be inapposite

because the Court does not read Plaintiff's complaint as

attempting to impose liability against the individual

‘defendants based upon their formulation of an

unconstitutional policy.

Defendants also cite Oswu v. Grzvb, 749 F.Supp.

897 (N.D. Ill. 1990), in which the court explained that a

municipality could not be held liable for civil rights

violations engaged in by police officers absent evidence

that the municipality had an officially adopted policy

pursuant to which the officers acted. In the Ninth

Circuit, a plaintiff can establish municipal lability in

three ways. First, the plaintiff can prove that the

municipal employee committed the alleged

constitutional violation “pursuant to a formal

governmental policy or a longstanding practice or

custom which constitutes the standard operating

procedure of the local governmental entity.” Gillette v.

Delmore, 979 F.2d 1342, 1346 (9 Cir. 1992) Gnternal

citations omitted). Finally, the plaintiff may prove that

an official with final policy-making authority “ratified a

subordinate’s unconstitutional decision or action and

the basis for it.” Id.

Liberally construing Plaintiffs pro se complaint,

Plaintiff contends that Maricopa County has a

longstanding policy of targeting minorities for criminal

prosecutions. If such allegation was true, the Maricopa

County could be held lable if the individual defendants

violated Plaintiffs rights by acting pursuant to this

policy. A judgment on the pleadings is appropriate only

when there is no unresolved issue of fact and no

question remains that the moving party is entitled toa

judgment as a matter of law. Blankenship v. Hearst

Corp., 519 F. 2d 418, 423 (9t Cir. 1975). The Court

finds that a factual issue remains of whether or not

Maricopa County has a policy of targeting minorities

for prosecution. Consequently, Defendants are not

entitled to judgment on the pleadings with respect to

Plaintiffs discrimination claims.

E. Abstention

Defendants begin their argument on abstention

by citing two cases that do not address the doctrine of

abstention but rather address the applicability of the

doctrines of res Judicata and collateral estoppel to §

1983 suits.’ As already explained, it is not appropriate

: For example, in Allen v. McCurry, 101 S.Ct. 411, 141

(1980) the Supreme Court merely held that the court of

appeals erred in finding that the plaintiffs inability to

obtain federal habeas relief upon his Fourth Amendment

claim rendered the doctrine of a collateral estoppel

inapplicable to his § 1983 suit. See also Munz v. Parr, 972

F.2d 971 (8 Cir. 1992) (district court did not err in

dismissing § 1983 claim on collateral estoppel grounds

where court found plaintiff had full and fair opportunity to

based on the record presently before the Court to enter

judgment in favor of Defendants on res Judicata or

collaterol estoppel grounds.

The Court also questioned the continued validity

of the cases cited by Defendants for the proposition that

§ 1983 claims relating to the validity of the plaintiffs

confinement are subject to an exhaustion requirement.

As the Supreme Court explained in Heck v. Humphrey

114 S. Ct. 2364, 2370 (1994), “we see no need to

abandon...our teaching that § 1983 contains no

exhaustion requirement beyond what Congress

provided." The Supreme Court explained:

The issues with respect to monetary damages

challenging conviction is not it seems to us,

‘exhaustion; but rather, the same as the issue

.was with respect to injunctive relief challenging

conviction in Preiser: whether the claim is

cognizable under § 1983 at all. We conclude that

it is not.

Id. at 2371.

In Heck, the Supreme Court directed lower

courts to consider whether -or riot a judgment in favor

of a plaintiff in a § 1983 action "would necessarily

imply the invalidity of his conviction or

sentence." Id. at 2372. If it would, and the plaintiff is

unable to show that his conviction or sentence has been

expunged, the action must be dismissed. Id. If a

judgment in favor of the plaintiff would not

"necessarily imply the invalidity of the plaintiff's

challenge search in criminal proceeding.

conviction or sentence, then .the action should proceed '

“in the absence of some other bar to' the suit." Id. at

2372-2373. As an example of an instance where a

judgment in favor of the plaintiff would not necessarily

imply the invalidity of the plaintiff's conviction or

sentence, the Supreme Court pointed to a suit for

damages attributable to an allegedly unreasonable

‘search. The Court explained that because of the

independent source, inevitable discovery and harmless

error doctrines, "such a § 1988 action, even if

successful, would not necessarily imply that the

plaintiffs conviction was unlawful." Id., at 2372 n. 7.

This footnote could be read as suggesting that if a §

1983 action is predicated upon a Fourth Amendment

violation and the independent

source, inevitable discovery or harmless, error

doctrines do not apply, then the action should be

dismissed because a judgment in favor of the plaintiff

on that claim would imply that the. plaintiff's

conviction was unlawful. The Court finds that Heck

does not provide authority for the dismissal of

Plaintiff's claims at this time because the applicability

of the factual basis for the convictions in this case is

unclear.

Finally, Defendants appear to contend that this

Court should abstain pursuant to Younger v. Harris, 91

S.Ct. 746 (1971). Defendants cite Feaster v. Miksch,

846 F.2d 21 (6th Cir. 1988).and Doby v. Strength, 758

F.2d 1405 (11th Cir. 1985) in support of their position

that this court should abstain. In Feaster, the plaintiff

brought a § 1983 action for damages in which she

claimed that the defendants violated her constitutional

rights in their execution of a search warrant. The Sixth

Circuit found it was - appropriate to ‘stay the "action

because "when disposition of a federal action for

damages necessarily requires the resolution of issues

that will determine the outcome of pending state

criminal proceedings, Younger requires that the federal

action not proceed." 846 F.2d at 24.

Similarly, in Doby, the petitioner filed a

complaint pursuant to 1983 alleging violations arising

out of his arrest and the search and seizure of his

home. The magistrate dismissed the case because he

found that the § 1983 action was actually an attack his

state court petition and therefore must be brought as a

writ of habeas corpus. . The Eleventh Circuit reversed

the dismissal on the ground that habeas corpus was not

the proper ground for bringing the plaintiff's claims

because Fourth Amendment ‘claims are not generally

cognizable in federal habeas corpus actions. The

Eleventh Circuit remanded the case to the district

court with orders that the court "abstain from resolving

the merits of petitioner's claims under the Georgia

Court of Appeals rules on the relevant issues.,"®

Abstention under_Younger is appropriate if (1)

there is an ongoing state proceeding in which the same

question is at issue, (2) the proceeding implicates

important state interests, and (3) the state proceeding

provides an adequate opportunity. to raise the federal

questions. Fresh International Corn. v. Agricultural

Labor Relations Board, 805 F.2d 1353, 1358 (9th Cir.

1986).. In the Ninth Circuit, if Younger is found to

apply, the action is to be dismissed. Id.; cf. Feaster v.

Miksch, 846 F.2d 21 (6th Cir. 16 fl 1988) (action

stayed).

Amongst other things, Plaintiff contends that his

8 <2” . . . .

The petitioner's conviction was being reviewed by the

Georgia Court of Appeals.

arrest in California was illegal, that he was not

arraigned in accordance with: Arizona Rules of

Criminal Procedures, that inadmissible hearsay was

introduced at his trial, and that he was denied effective

assistance at trial. Defendants contend, and Plaintiff

does not deny, that Plaintiff presently has actions

challenging his conviction pending in the state courts.

Plaintiff does not deny that the same issues are being

addressed in the state actions. The

Court finds that there is an important state interest in

passing on the constitutionality of Plaintiffs claims

because the resolution of these claims directly impacts

a state criminal proceeding. The court also finds that

the state proceedings in this case provide Plaintiff an -

adequate opportunity to raise his claims. See Kugler v.:

Helfant, 95 S. Ct. 1524, 1531 (1975) (The policy of

equitable restraint expressed in Younger v. Harris, in

short, is found on the premise that ordinarily a pending

state prosecution provides the accused a fair and

sufficient opportunity for vindication of federal

constitutional rights”), cf. Stone v. Powell, 96 S. Ct.

3037 (1976) (Fourth Amendment claims are not

generally cognizable in federal habeas corpus actions).

Plaintiff contends that a federal court should not

abstain pursuant to Younger in the absence of a

competent state tribunal. See Kugler, 95 S. Ct. 1t 1531

n.4. While this may be law, Plaintiff has failed to

provide establish that the state courts are not

competent to resolve these matters in the first instance.

Consequently, the court finds that it is inappropriate to

abstain pursuant to Younger and to dismiss Plaintiffs

complaint to the extent that it raises issues that are

presently being considered by the Arizona state court.

Plaintiffs Cross Motion for Summary

Judgment

Plaintiff contends that because Defendants have

failed to show that they are entitled to judgment; the

Court should enter judgment in his favor. When cross-

motions for judgment are filed, whether they be

motions for judgment on the pleadings or motions for

summary judgment; each motion must be considered on

its own merit, and both may be denied because genuine

factual deputes remain, See Shook v. U.S., 713. F. 2d

662, 665 (11th Cir. 1983). Courts may not resolve such

factual disputes on cross-motions’ any more than the.

Court could on a single motion. See. ITCO Coro. v.

Michelin Tire Corp Commercial Div., 722 F.2d 42,.45

n-3 (4th Cir. 1983), cert. denied, 469 U.S. 1215 (1985).

On summary judgment, the moving party must

establish the absence of a genuine issue of material

fact. Celotex Coro. v. Catrett, 477 U.S. 317, 106 S. Ct.

2548, 2553 (1986). Plaintiff has failed to do-so:

Consequently, Plaintiff's motion will be denied.

Accordingly,

IT IS ORDERED granting in part and denying in

part Defendant's motion for judgment on the pleadings:

Plaintiff s claims involving issues, identical to' those

presently raised in his pending state proceedings are

dismissed pursuant to the doctrine of abstention set

forth in Younger v. Harris.

FURTHER ORDERED ~ denying

Motion in Limine; Cross Motion

Judgment (doc.#134).

DATED this 24t» of March, 1995.

S/D

HONORABLE ROSLYN O. SILVER

U.S DISTRICT COURT JUDGE

Copies of all counsel of record

for

Plaintiff's

Summary

FILED COPY

SEPTEMBER 30, 1996

CLERK US DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

No. CIV 94-170-

PHX-ROS (BGS)

(LEAD)

Anant Kumar Tripati,

No. CIV 94-504

PHX-ROS (BGS)

No. CIV 95-702

PHX-ROS (BGS)

(Consolidated)

MEMORANDUM

) OF DECISION

AND ORDER

i i i a a a a a ae

State of Arizona, ct al.,

Defendants.

re Nee ee ee”

Pending before the Court is Defendants’ Motion.

for Summary Judgment (Document No. 251),

BACKGROUND

On May 13, 1998, Plaintiff filed a pro se

Complaint (cause number CIV 94-170-PHX-ROS (BGS)

and-hereafter.the'’"McKay Case") in the United States

District Court for the Central District of California.

The Complaint raised issues of Unconstitutionality

related to Plaintiff's Arizona. state criminal

proceedings including arrest, search and seizures, trial,

and sentencing. On December 3, 1993, the McKay case

was transferred to the District of Arizona. On May 23,

1994, Defendants filed a Motion for Judgment on the

Pleadings. On March 30, 1995, the Court granted

Defendants’ Motion in part, dismissing all claims

except Plaintiff's claim that ‘the Maricopa County

Attorney's Office has a_ long-standing 'policy of

targeting minorities for criminal investigation, arrest

and prosecution and that the individual Defendants

acted pursuant to that policy in prosecuting Plaintiff.

Plaintiff also filed two additional Complaints

related to the issues raised in the McKay Case. On

March 8, 1994 Plaintiff filed a pro se 'Complaint in

cause number CIV 94-504-PHX-ROS (BGS) (hereafter

the "Forfeiture Case") and on April 7, 1995, Plaintiff

filed a pro se Complaint in cause number CIV 95-702-

PHX-ROS (BGS) (hereafter the “Insurance Case’).

On June 19, 1995, the Court consolidated the

Forfeiture Case and the Insurance Case with the

McKay Case. On July 18, 1995, Plaintiff filed a Third

Amended Complaint essentially restating the issues

raised in the Forfeiture Case and the Insurance Case.

Interalia, The Third Amended Complaint asserts that

Defendants acted without probable cause in seizing

Plaintiffs property and filing civil forfeiture proceeding

against that property and that Defendants caused the

Arizona Department of Insurance to issue a Cease and

Desist Order against Plaintiff without cause.

On, November 13, 1995, Defendants filed a Motion for

Summary Judgment on the consolidated case.

STANDARD OF REVIEW

Summary judgment is appropriate when the

movant shows "there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law." Fed.R.Civ.P.56(c):

California. Architectural Building Products, Ina. v.

Franciscan Ceramic,' Inc., 818 F.2d 1466, 1468 (9th

Cir. 1987), cert denied, 484 U.S. 1006 (1998)

The absence of a genuine issue of material fact

may be demonstrated by pointing out to the court that

“there is an absence of evidence to support the

nonmoving party's case” on issues where the

nonmoving party bears the burden of proof. Celotex

Corp. v. Catrett, 477 U.S 317, 321 (1986). If the

nonmoving party bears the burden of proof at trial as to

any element essential to his case, that party can

withstand a motion for summary judgment only by

making a showing sufficient to establish a genuine

issue of fact regarding that element. Id.

DISCUSSION

I. McKay Case

Plaintiff alleges that the Maricopa County

Attorney's Office has a_ long-standing policy of

investigating, arresting, and prosecuting individuals

based upon minority status. (Pl.’s Second Am. Compl.

At “AB”, p.48) Plaintiff alleges that he was

investigated, arrested and prosecuted pursuant to that

policy because he is East Indian. (I1d.) Plaintiff further

alleges that the Maricopa County Attorney’s Office and

individual Defendants targeted, investigated, arrested

and prosecuted him because he was seeking to disclose

the Maricopa County Attorney's Og/Grand Jury Bureau

office policy related to minorities. (Pl.’s Second Am.

Compl. At “A”.)

Defendants assert that Plaintiff was _ not

targeted, arrested or prosecuted pursuant to any policy

targeting minorities for prosecution. (Defs. Mot Summ.

J. at 11.) To support this proposition, Defendants cite

to the affidavit of E.Miles Nielson, the Maricopa

County Attorney's Office Bureau Chief of the Charging

(Defs. SSF at 1-2) In his Affidavit, E. Miles Nelson,

asserts that the standard used by the Maricopa County

Attorty’s Office to charge a person with a crime is a

“reasonable likelihood of conviction at trial” standard.

(Nielson Aff. At 2). Nelson also asserts that the

Charging/Grand Jury Bureau has never utilized a

standard for investigating, charging, or prosecuting

individuals based upon his minority status. (Chaitifield

Aff. At 4-5; Harris Aff. At 4.)

Plaintiff responds with his Affidavit. (Pl.’s SSP

at Exh. A). In his Affidavit, Plaintiff asserts that

Defendant Archuleta, a paralegal with the Maricopa

County Attorney’s office, told Plaintiff that certain

individuals had targeted Plaintiff because he “was a

‘sand nigger’ who had to be restrained|[.]” (Tripati Aff.

At 5.) Plaintiff also asserts that Defendant Archuleta

confirmed to Plaintiff that it was the policy of Maricopa

County to target minorities for arrest and prosecution.

(Tripati Aff. At 2.) Accordingly, Defendants have failed

to demonstrate that no genuine issue of fact exists or

that they are entitled to judgment as a matter of law.

Defendant’s motion for Summary Judgment is denied

as to the claims still pending in the McKay case.

II. Forfeiture Case

Plaintiff claims that Defendants obtained a

warrant to seize property at his business and initiated

forfeiture proceedings on that property without

probable cause. (Pl.’s Third Am. Compl. At Attach: a-k)

Plaintiff further alleges that he prevailed in the state

forfeiture proceeding. (id. At d.)

In their Motion for Summary Judgment,

Defendants assert that Plaintiffs property was seized

and removed from California to Arizona pursuant to

Arizona and California valid search warrants. (4d.:

Defs. SSF AT 3-4.) In his Affidavit, Defendant

Chaitfield states that he set forth the necessary

probable cause for the warrants to issue based on his

investigation of Plaintiff. (Chaitfield Aff. At 2.)

Chaitfield asserts that he had no discussion with any

Maricopa County Attorney’s Office employee related to

investigating or prosecuting Plaintiff based upon his

minority status. (Chaitfield Aff. At 4-5.)

Similarly, Defendants asserts that they

instituted forfeiture proceedings based upon probable

cause. (Defs.’ Mot. Summ. J. at 5.) In his Affidavit,

Harris asserts that he instituted forfeiture proceedings

based upon Plaintiffs criminal conviction and had no

discussion with any Maricopa County Attorney’s Office

employee related to prosecuting Plaintiffs civil

forfeiture based upon his minority status. (Harris Aff.

At 4-5)

In his Response, Plaintiff asserts that Defendant

Archuleta, a paralegal with the Maricopa County

Attorney’s Office, told Plaintiff that certain individuals

had targeted Plaintiff because he was a ‘sand nigger

who had to be restrained (.)” (Tripati Aff. At 5.)

Plaintiff also asserts that Defendant Archuleta stated

that the seizure and forfeiture of his property was a

result the Defendants targeting of Plaintiff. (Tripati

Aff. At 5.)9

° Plaintiff also argues that Defendants failed to produce

any evidence showing that they had the authority to

size and remove Plaintiff's property prior to the search

and removal. Attached to

Defendants’ Reply, however, is a Return of Search

Warrant authorizing the search and removal one day

The court finds that Defendants have failed to

demonstrate that there are no genuine issues of

materiai fact related to this issue.

Defendants also assert that they are entitled to

qualified immunity pursuant to A.R.S. § 13-4314 (e).

(Defs’ Mot. For Summ. J. at 6). This immunity applies

only if “it appears that there was reasonable cause” for

the seizure for forfeiture or the filing of the notice of

pending forfeiture. A.R.S. § 13-4314 (e). Here, however,

because there is a genuine issue of material fact related

to the reasonableness of the seizure, Defendants have

failed to demonstrate that there is no genuine issue of

material fact and that they are entitled to summary

judgment as a matter of law as to this issue.

Finally, Defendants assert that this court must

abstain from any claim related to the forfeiture

proceedings that challenges Plaintiffs criminal

conviction under Younger abstention doctrine.'® (Defs’

Mot Summ J. at 7-8.) Defendants, however, have not

identified the claims related to Plaintiff's 2 forfeiture

proceeding meet the Younger criteria. Accordingly,

Defendants have failed to demonstrate that they are

entitled to judgment as a matter of law to this issue.

Overall, Defendants have failed to demonstrate

that there are no issues of material fact and that they

are entitled to judgment on a matter of law as to the

claims pending in the Forfeiture Case.

prior to the search and removal. (Defs.' Supp. SSF at

Exh. A.)

Younger v. Harris, 401 U.S. 37 (1971)

III. Insurance Case

Plaintiff asserts that-the Arizona Department of

Insurance (ADOI) issued a Cease and Desist Order

against Plaintiff solely at the request of certain

individual Defendants to punish Plaintiff because he

challenged Defendants' actions and because he was a

racial minority.!! (Pl.’s Third Am. Compl. At “c”; Pl.’s

SSF at 9.) Therefore, Plaintiff asserts that these

individual Defendants have maliciously prosecuted

him. Ud. At “c” — “d’.)

Defendants assert that the ADOI independently

concluded that the Cease and Desist Order was proper.

(Defs.. Mot. For Summ. J at 8-9; Reply at 4.)

Defendants cite to the Affidavit of Susan Gallinger, the

former Director of the Arizona Department of

Insurance and the individual who issued the Cease and

Desist Order. (Defs.' -SSF at-7-9.)

In the Affidavit, Gallinger states that, as

Director of the Arizona Department of Insurance, she

had the authority to issue a Cease and Desist Order

based upon her belief that an entity was unlawfully

transacting insurance in Arizona. (Gallinger Aff. at 2.)

Callinger states that she formed the belief that

Plaintiff was unlawfully transacting insurance in

Arizona and issued the Cease and Desist Order against

him “({b]lased upon information and documentation

obtained by the Department of Insurance, verified

records of the Department and the Department's own

investigation{[.]” dd.)

Plaintiff claims that the Gallinger Affidavit is a

false. (Pl.'s Resp.. at 9-10; Pl.'s SSF at 9.) As proof of

the Affidavit's falsehood, Plaintiff notes that statement

'' Susan Gallinger and the Arizona Department of [nsurance are not

Defendants in this action.

by Gallinger that she had no conversations with

individual Defendants related to issuing the Cease and

Desist Order based upon Plaintiff's race or to harass

Plaintiff for any reason. Plaintiff asserts that Gallinger

did have- conversations with certain individual

Defendants about Plaintiff. ([d.) Plaintiff cites to

correspondence sent to and from Gallinger which

includes remarks about Plaintiff's' ongoing criminal

proceeding, correspondence from Defendant Chaitfield

to an ADOT investigator, and memoranda discussing

the risk of pursuing a Cease and Desist order against

Plaintiff. (Pl.'s SSF at Exh. 0 and N.)

The Court's review of the Affidavit of Susan

Gallinger indicates that Gallinger did’ not assert that

she had no conversations with individual Defendants

about Plaintiff. Instead, Gallinger asserts only that she

had no conversations with

individual Defendants related to issuing the Cease and

Desist Order based upon Plaintiffs race or to harass

Plaintiff for any reason. (Gallinger Aff. at 3-4.) The

letters and memoranda cited to by plaintiff do not

contradict this statement. Accordingly, Plaintiff has

failed to demonstrate a material issue of fact related to

Gallinger's assertion that she issued the Cease and

Desist Order based upon her belief that Plaintiff was

unlawfully conducting insurance.

Further, to the extent Plaintiff attempts to make

a conspiracy claim between Gallinger and Defendants

by introducing the letters and memoranda, Plaintiff

has failed. "A mere allegation ofconspiracy without

factual specificity is insufficient." Karim-Panahi v. Los

Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988).

To state a conspiracy claim, a plaintiff must allege

material facts that show the existence of an agreement

or “meeting of minds.” Woodrum v. Woodward County,

866 F. 2d 1121, 1126 (19% Cir. 1989) (affirming

dismissal where plaintiff provided only conclusory

allegations of conspiriacy); Burns v. County of King,

883 F.2d 819, 821 (9 Cir. 1989). The evidence provided

by Plaintiff to contradict Gallinger’s Affidavit does not

rise to the level needed to show a conspiracy.

Defendants have demonstrated that there are no

genuine issues of material fact and that they are

entitled to judgment as a matter of law on the

malicious prosecution claims related to the Cease and

Desist Order. Accordingly, Defendants' Motion for

Summary Judgment will be granted with respect to

this claim

CONCLUSION

For the foregoing reasons

IT IS THEREFORE ORDERED J that

Defendants’ Motion for Summary Judgment (Doc. No.

251) is granted in part and denied in part. The motion

is granted as to the malicious prosecution claims

related to the Cease and Desist Order. The Motion is

denied in all other respects

IT IS FURTHER ORDERED that Defendants

shall brief, within 30 days from the date of this Order,

the effect, if any, that Heck v. Humphry, 114 S. Ct.

12364 (1994) has on the remaining claims in this case.

Plaintiff shall have 30 days from the filming of

Defendants’ brief to respond and Defendants shall have

15 days from the filing of Plaintiffs response to reply.

DATED this 30 day of September, 1996

S/D___

ROSLYN O. SILVER

United States District Judge

Copies to Plaintiff and counsel of record

FTLED COPY

JANUARY 22, 1997

CLERK US DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

No. CIV 94-170-

PHX-ROS (BGS)

(LEAD)

No. CIV 94-504

PHX-ROS (BGS)

)

Anant Kumar Tripati, )

)

) No. CIV 95-702

)

Plaintiff,

PHX-ROS (BGS)

(Consolidated)

MEMORANDUM

OF DECISION

AND ORDER

GUNN McKAY, et al.,

Defendants.

Pending before the court is Defendants’ Legal

Memorandum (Doc. No. 297) briefing the impact of

Heck v. Humphrey, 114 S. Ct. 2364 (1994), on

Plaintiffs remaining claims. Also pending is Plaintiffs

Motion to Supplement Complaint (Doc. No. 303).

BACKGROUND

On March 8, 1994, Plaintiff filed a pro se Second

Amended Complaint (cause number CIV 94-170-PHX-

ROS (BGS) and hereafter the “McKay Case” or the

“McKay Complaint”) raising issues of

unconstitutionality related to Plaintiffs Arizona state

seizure, trial, and sentencing. On May 23, 1994,

Defendants filed a Motion for Judgment on_ the

Pleadings. On March 30, 1995, the Court granted

Defendants' Motion in part, dismissing all claims under

Younger v, Harris!2 except Plaintiff's claim that the

Maricopa County Attorney's Office has a long-standing

policy of targeting minorities for criminal investigation,

arrest and prosecution and

that the individual Defendants acted pursuant to that

policy in investigating, arresting, and prosecuting

Plaintiff.

Plaintiff also filed two additional Complaints

related to the issues raised in the McKay Case. On

March 8, 1994, Plaintiff filed a pro se Complaint in

cause number CIV 94-504-PHX-ROS (BIGS) (hereafter

the "Forfeiture Case") and, on April 7, 1995, Plaintiff

12} filed a pro se Complaint in cause number CIV 95-

702-PHX-ROS (BGS) (hereafter the "Insurance Case).

On July 19, 1995, the Court consolidated the Forfeiture

Case and the Insurance Case with the McKay Case and

allowed Plaintiff to file a previously lodged Amended

Complaint for the Insurance and

Forfeiture Cases (hereafter "Forfeiture Complaint").

Inter alia, the Forfeiture Complaint asserts that

Defendants acted without probable cause in seizing

Plaintiff's property and filing civil forfeiture proceeding

against that property and that Defendants caused the

Arizona Department of Insurance to issue a Cease and

Desist Order against Plaintiff without cause.

On November 13. 1995 Defendants filed a

12401 U.S. 37 (1971)

Motion for Summary Judgment in the consolidated

case. On September 30, 1996, the Court issued an

Order granting in part and denying in part Defendants'

Motion for Summary Judgment. Specifically, the Court

dismissed the Insurance Case and requested additional

briefing on the impact of Heck v. Humphrey on

Plaintiff's remaining claims.

DISCUSSION

9 Plaintiffs Motion to .Supplement McKay

And Forfeiture

Plaintiff filed a Motion te Supplement

pursuant to Rule 15(d), Federal Rules of Civil

Procedure, and lodged a proposed “Supplemental

Complaint.” Supplemental pleadings are

restricted to events occurring since initiation of

the suit. See, e.g., Federal Deposit Insurance

Corp. v. Knostman, 966 F. 2d 1133, 1138 (7t® Cir.

1992). Here, the allegations raised in the

supplemental Complaint includes allegations

related to claims dismissed in the Court’s Order

of March 30, 1995. Plaintiffs Motion to

Supplement Complaint is an improper attempt

to amend his McKay and Forfeiture Complaint

and will be denied.

II. Defendants’ Supplemental Legal

Memorandum on Heck v. Humphrey.

When a state prisoner seeks damages ina §

1983 suit, the district court must consider whether

a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or

sentence.” Heck, 114 S. Ct. at 2372. If the plaintiffs

§ 1983 claim would imply the invalidity of his

conviction or sentence, the claim does not arise until

the conviction or sentence, the claim does not arise

until the conviction or sentence is_ reversed,

expunged, invaliciated or impugned by the grant of a

writ of habeas corpus. Id. At 2373.

A. McKay Case.

Plaintiffs remaining allegations!? in the McKay

Complaint state that the Maricopa County Attorney’s

13 In its Order of March 30, 1995, the Court noted that

Plaintiffs McKay Complaint raised numerous claims

relating to his state criminal trial, including extradition,

arraignment, introduction of evidence, and effective

assistance of counscl. (3/30/95 Order at 10.) Because

Plaintiff did not deny Defendants’ assertion that these

same issues were being addressed in state court actions,

the Court held that abstention from these issues was

appropriate and dismissed these claims. (Id. At 11-12.)

The Court also noted that Plaintiffs allegation that

Maricopa County had a long-standing policy of targeting

minorities for prosecution and that Plaintiff was targeted

pursuant to that policy stated a viable claim. (Id. at 6.)

Accordingly, although not specifically dismissed without

prejudice pursuant to Younger in the Court’s March 30,

1995 Order: Four; Five; Six; Seven; Eight; Nine; Ten;

Eleven; Twelve; Thirteen; Fourteen; Seventeen; Eighteen;

Nineteen; Twenty-one; Twenty-two; Twenty-three;

Twenty-four; Twenty-five; Twenty-six; Twenty-seven;

Twenty-eight; Twenty-nine; Twenty- Thirty; Thirty-one;

Thirty-two; Thirty-three; Thirty-four, Thirty-five; Thirty-

six; Thirty-seven; Thirty-eight; Thirty-nine; Forty- nine,

Forty-one, Forty-two, Forty-three, Forty-four, Forty-six,

Forty-seven, Forty-eight, and Fifty-three to the extent the

“acts” alleged by Plaintiff include any specific acts alleged

earlier in the Complaint and dismissed pursuant by

Younger.

Office has a long-standing policy of investigating,

arresting, and prosccuting individuals based upon

minority status. (Pl.’s McKay Compl. At “A”, p.48.)

Plaintiff also alleges that he investigated, arrested and

prosecuted pursuant to that policy because he is East

Indian and because he was seeking to disclose the

Maricopa County Attorney’s Office policy related to

minorities. (Id. At “AB”.)

Plaintiffs claims related to his arrest, if proven

true, do not necessarily imply the invalidity of his

criminal conviction. Groman __v. Township _ of

Manalapan, 47 F. 3d 628, 626 (3d Cir. 1995); see Heck,

114 S. Ct. at 2372, n.7. Accordingly, these claims are

not affected by Heck and may proceed.

Although Plaintiffs claim related to his

investigation, if proven truc, do not necessarily imply

the invalidity of his criminal conviction, see Heck, 114

S Ct. at 2373, n.7, they must be dismissed. Unlike his

arrest'4, Plaintiff could not show actual, compensable

injury arising from the investigation that “does not

encompass the ‘injury of being convicted and

imprisoned (until his conviction has been overturned).”

Id. (citing Memphis Community School Dist. V.

Stachura, 477 U.S. 299, 308 (1986)). Accordingly,

Plaintiffs § 1983 claims related to his investigation

have not yet arisen under Heck and are dismissed

without prejudice. Plaintiff may bring these claims

after his criminal convictions have been overturned or

otherwise invalidated.

Plaintiffs section 1983 claims related to the

prosecution of his state criminal charges are in essence

i¢ Plaintiffs claim for false arrest permits damages for

the “time of detention up until issuance or process or

arraignment, but not more.” Heck, 114 S. Ct. at 2371

a constitutional malicious prosecution claim. See Heck,

114 S. Ct. at 2371. “To permit a convicted criminal

defendant to proceed with a malicious prosecution

claim would permit collateral attack on the conviction

through the vehicle of a civil suit.” Id. Therefore,

Plaintiffs § 1983 claims related to the prosecution of

his criminal actions have not yet arisen and must be

dismissed without prejudice pursuant to Heck. Plaintiff

may bring these claims after his criminal convictions

have been overturned or otherwise invalidated.

To clarify, the following causes of action are

dismissed without prejudice in Plaintiffs McKay

Complaint pursuant to Heck: Fifteen, Twenty, Forty-

five, Forty-six, Forty-seven, Forty-eight, Forty-two, and

Fifty-four except as the acts in these causes of action

specifically relate to his arrest.

B. Forfeiture Case

Plaintiff claims that Defendants obtained a warrant

to seize property at his business, seized that property,

and initiated forfeiture proceedings on that property

without probable cause.

(Pl.’s Forfeiture Compl. at Attach. a-k.)

Plaintiffs claims related to the institution of the

forfeiture proceedings must be dismissed. Defendants

assert, and Plaintiffs does not deny,'® that they

had probable cause to initiate forfeiture proceedings

based upon Plaintiffs criminal convictions. Plaintiff,

however, does argue that Defendants’ assertion of

probable cause arising from the criminal convictions was

rejected by the trial court judge presiding over the

forfeiture proceedings. (Pl.’s Resp. at 14.) The exhibits

attached to Plaintiffs Response, however, simply show

that the tral court judge denied summary judgment

based upon the criminal convictions. (Id. At Exh. “E”.)

determined probable cause existed to _ institute

forfeiture proceedings based soley upon Plaintiffs

criminal convictions. (Defs’ Mot. Summ. J. at 5; Harris

Aff. At 4-5.) Accordingly, because Plaintiffs criminal

convictions were the probable cause for the forfeiture

proceedings, a judgment in favor of Plaintiff finding

that no probable cause cxisted would necessarily imply

the invalidity of his criminal convictions. Accordingly,

Plaintiffs § 1983 claims related to initiation of

forfeiture proceedings have not yet arisen and are

dismissed without prejudice pursuant to Heck. Plaintiff

may bring these claims after his criminal convictions

have been overturned or otherwise invalidated. |

Plaintiffs claims related to seizure of the property,

if proven true, however, do not necessarily imply the

invalidity of his criminal convictions because of

evidentiary doctrines such as independent source and

inevitable discovery.!®© Heck, 114 S Ct. at 2372, n.7.

Accordingly, these claims are not affected by Heck and

may proceed.

To clarify, the following causes of action are

dismissed without prejudice in Plaintiffs Forfeiture

Complaint pursuant to Heck: First; Ninth; Eleventh;

Twelfth; Thirteen; Twenty-first; and Twenty-third and

Twenty-fourth except for the portion of the claims

related to seizure of Plaintiffs property.!7

existed.

'6 Moreover, it is unclear whether any of the seized

property was used as evidence in Plaintiff's criminal trial.

17 The Court also notes that Plaintiffs Third and Forth

Cause of Action were dismissed from Plaintiffs Forfeiture

Complaint in the Court’s Order of September 30, 1996.

CONCLUSION

For the foregoing reasons,

IT IS THEREFORE ORDERED J that

Plaintiffs Motion to Supplement (Doc. No. 303) is

denied.

IT IS FURTHER ORDERED that Plaintiffs 42

U.S.C. § 1983 claims related to the prosecution of the

Forfeiture case and the prosecution and investigation

of the McKay Case are dismissed without prejudice

under Heck. To clairify. the following causes of action

are dismissed without prejudice in Plaintiffs McKay

Complaint pursuant to Heck: Twenty, Forty-five, Forty-

six, Forty-seven, Forty-eight, Fifty-two, and Fifty-four

except as the acts in these causes of action specifically

relate to plaintiffs arrest. The following causes of

action are dismissed without prejudice in Plaintiffs

Forfeiture Complaint pursuant to Heck: First; Ninth;

Eleventh; Twelfth; Thirteen; Twenty-first; and Twenty-

third and Twenty-forth except as the acts in these

causes of action specifically relate to seizure of

Plaintiffs property. Plaintiff may refile these dismissed

claims once his criminal convictions have been

overturned or otherwise invalidated.

DATED this 18 day of January, 1997.

S/D

ROSLYN O. SILVER

United States District Judge

FILED COPY

APRIL 29, 1997

CLERK S DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

Anant Kumar Tripati,

Plaintiff,

Vv.

ORDER

Gunn McKay, et al.,

Defendants,

ee ee a

No. CIV 94-0170-PHX-ROS (BGS)

No. CIV 94-504-PHX-ROS(BGS)

No. CIV 95-702-PHX-ROS (BGS)

(Consolidated)

Pending before the Court is Defendants' Motion

for Reconsideration (Doc. 293)

Motions for reconsideration should be granted

only where (1) 18 the Court "has _ patently

misunderstood a party;" (2) the Court "has made a

decision outside the adversarial issues presented to the

Court;" (3) the Court has "made an error not of

reasoning, but of apprehension;" or (4) there is a

"controlling or significant change 22 in the law or facts

since the ‘submission of the issue to the Court." Above

the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 2411

F.R.D. 99 (E.D.Va. 1983).

In the Motion, Defendants argue that Plaintiff's

Affidavit detailing his conversations with Teresa

Archuleta. cannot be used to create an issue of fact to

deny the Motion for Summary Judgment,,------ , because

those conversations are hearsay and thus inadmissible

evidence. In response, Plaintiff argues that his

conversations with Teresa Archuleta are admissible

under either Rule 801(d) (2) or Rule 804(b) (3), Federal

Rules of Evidence.

Although it appears that Plaintiff's

conversations with ‘l‘eresa Archuleta are admissible!%,

18 r . ° . . .

[he conversations are admissible egainst the Estate

of Teresa Archuleta pursuant to Rule 801(d)(2) (A.), Federal

Rules of Evidence, as an admission of a party opponent. Bee,

e.g., Estate of Schafer v. Commissioner, 749 F.2d 1216,

1220 (9th Cir. 1984) (statement by decedent .admissible

against estate).

The conversations also appear to be admissible

against the other Defendants pursuant to Rule 801(d) (2) (D)

as a statement by a servant concerning a matter within the

scope of employment and made during the existence of the

rclationship. Defendants’ principal objection to admission

under this Rule is that Plaintiff has failed to show that

Teresa Archuleta was authorized to make the statements.

The cases cited by Defendants in support of this proposition,

however, interpret an earlier version of the Rule. Authority

to make the statement is no longer required. See ; 23

the Court does not need to- reach that

issue. "If a party fails to move to strike an affidavit that

is allegedly defective under Rule 56(e), he waives an

objection to Allen v. Scribner, 812 F.2d 426, 435 n.18

(9th Cir. 1987)

Here, Defendants failed to file a Motion to Strike

Plaintiffs Affidavit. In fact, Defendants failed to object

in any' manner to Summary Judgment.

Defendants Motion for Reconsideration will be denied.

Plaintiffs Motion to Strike Defendant’s motion for

Reconsideration and Strike Portions of the Reply to

Response to Motion for Reconsideration (Doc. No. 308)

will be denied as moot.

IT IS THEREFORE ORDERED that Defendants'

Motion for Reconsideration (Doc. No. 293) is denied.

Nekolnv v. Painter, 653 F.2d 1164, 1171 (7th Cir. 1981),

cert. denied, 455 U.S. 1021 (1982).

Because, however, no party briefed the’ issue of

whether Teresa Archuleta's statements concerned a matter

within the sccpe of her employment, the Court cannot decide

the issue of admissibility against the other Defendants. See

In re Aircrash in Bali, Indonesia, 871 F.2d 812, 816 (9th

Cir.), cert. denied, 493 U.S. 917 (1989); Breneman v.

Kennecott Corn., 799 F.2d 470, 473 (9th Cir.27 1986).

IT IS FURTHER ORDERED that Plaintiff's Motion

to Strike Defendants' Motion for Reconsideration (Doc.

No. 295) and Motion to Strike Portions of Reply to

Response to Motion for Reconsideration (Doc No. 308)

are denied as moot.

DATED this 21 day of April, 1997

S/D

ROSYLN O SLIVER

US District Court Judge

Copies to all counsel of record

FILED COPY

September 16, 1997

CLERK S DISTRICT

COURT ARIZONA

IN THE ‘UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

Anant Kumar Tripati,

Plaintiff,

ORDER

Gunn McKay, et al..,

Defendants.

Plaintiff has filed a pleading styled, "Motion

Under Local Rule 1.10(p) Re: Document 168 Due to

Change in Facts." ‘The Court construes this as a Motion

for Reconsideration.

FACTUAL BACKGROUND

On March 30, 1995, this Court ruled that, under

Younger v. Harris, 401 U.S 37 (1971), it would abstain

from considering various claims raised in Plaintiff's

complaint to the extent that those claims raised issues

being considered by the Arizona state courts. (See

Order dated March 24, 1995; Doc. 168.) Accordingly,

the Court dismissed those claims without prejudice.

See Fresh International Corp. v. Agricultural Labor

Relations Board, 805 F.2d 1353, 1258 (9th Cir. 1986) (if

Younger applies, action must he dismissed.) Since that

decision, however, appeals have been exhausted, and

his conviction was upheld. Thus, there are no longer

state court proceedings pending in the Arizona state

courts which address the issues raised in the claims

previously dismissed by this Court.

After Plaintiffs state court conviction was

upheld, this Court directed the parties to submit briefs

regarding the impact of Heck v. Humphrey, 512 U.S.

477 (1994), on Plaintiff's remaining claims. ‘he Court

considered the supplemental! briefs, and by Order dated

January 18, 1997, dismissed, without prejudice the

following claims from Plaintiffs Second Amended

Complaint:'® Counts Twenty: Forty-five; Forty-six;

Forty-seven; Forty-eight: Fifty-two and _ Fifty-four,

except insofar as the acts alleged in these causes of

action specifically relate to Plaintiffs arrest. The Court

Ordered that Plaintiff “may refile these dismissed

claims once his criminal convictions have been

overturned or otherwise invalidated.” (Order dated

January 18, 1997 at 8:7-8.) In addition, the Court noted

in footnete:2 of that Order that this Court had

dismissed numerous claims from the McKay Complaint

on March 30, 1995, and specifically set forth by number

the claims that had been dismissed.

19 The Second Amended Complaint referred to is the

‘McKay Complaint," which refers to the cause of action

originally filed as CIV-94-170. The “McKay Complaint"

was subsequently consolidated with two other cases,

CIV-94-504 (the “Forfeiture Case") and CIV95-702 (the

Insurance Case"), but at the time the March 30, 1995

Order, which Plaintiff seeks this Court to reconsider, was

filed, the cases had not yet been consolidated. Thus,

Plaintiffs motion addresses only those claims raised in

the “McKay Complaint.

Separately, and before deciding the impact of

Heck on Plaintiff's claims, Magistrate Judge Silverman

denied Plaintiff's request to reopen discovery without

prejudice, subject to renewal after the undersigned

judge resolved the Heck issue. (Doc. 311.)

Plaintiff subsequently filed the instant Motion

for Reconsideration, (Doc. 313), as well as a separate

renewed Motion to Reopen Discovery. (Doc. 312.)29 In

his Motion for Reconsideration, Plaintiff asks the Court

to reconsider its decision of March 30, 1995, to dismiss

the claims referenced at footnote 2 of this Court's Order

dated January 18, 1997. Plaintiff argues that the

interests of the parties and judicial economy would best

be served by "setting aside" the abstention order.

Essentially, the relief Plaintiff asks this Court to grant

him is that he be permitted to amend his complaint to.

state claims that were previously dismissed pursuant

to Younger. Plaintiff's renewed request to reopen

discovery is thus premised on the possibility that the

Court will permit him to amend his complaint to re-

state the dismissed claims.

LEGAL DISCUSSION

A. LEAVE TO AMEND

Fed. R. Civ. P. 15(a) governs the amendment of

pleadings. The rule states that "a party may amend the

party's pleading only by leave of court or by written

consent of the adverse party; and leave shall be freely

given when justice so requires." The Supreme Court

has held that although the decision whether to grant

leave to amend is within the sound discretion of the

trial court, leave to amend should be freely given.

Foman v. Davis, 371 U.S. 178, 182 (1962). In

Richardson v. United States, 841 F.2d 993, 999 (9th

Cir. 1988), the Ninth Circuit stated that leave to

amend should be freely given unless there is "an

affirmative showing of either prejudice or bad faith."

The four factors to be considered in deciding whether to

grant leave to amend are undue delay, bad faith,

prejudice and futility of amendment. DCD Programs.

Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

The Court is most concerned with the question

whether amendment would be futile because, if

Plaintiffs claims are subject to dismissal pursuant to

Heck, it would be futile to permit him leave to amend

to state those claims. Accordingly, the Court will first

address whether Plaintiff's claims survive Heck.

B. HECK V. HUMPHREY

i, Plaintiff's proposed amendments

In footnote 2 of its Order dated January 18,

1997, the Court dismissed the following claims, which

Plaintiff now seeks leave to re-file in this action.

In Count Four, Plaintiff alleges that Defendants

lied to California and Arizona state officials in order to

obtain a warrant to arrest him in California and

extradite him to Arizona. (Doc. 82.)

In Counts Five, Six, Seven, Eight Nine, Ten,

Eleven and Twelve, Plaintiff alleges that he was denied

his protected liberty interest, created by mandatory

language in the Arizona Rules of Criminal Procedure.

(Id.)

In Counts Thirteen and Fourteen, Plaintiff

alleges that Defendants seized his property in violation

of the Fourth and Fourteenth Amendments and

California law. In Count Seventeen, Plaintiff alleges a

violation of the UCEA. (Id.).

In Counts Fighteen, Nineteen, Twenty, Twenty-

one, and Twenty-two, Plaintiff alleges that his’ state

created liberty interests were violated when

Defendants led to the grand jury and petit jury

regarding statements allegedly made by him. (Id.)

In Counts Twenty-three, Twenty-four, Twenty-

five, and Twenty-six, Plaintiff alleges that Defendants

violated his state created liberty interests by lying,

presumably during trial testimony. (1d.)

In Counts ‘Twenty-seven and ‘Twenty-eight

Plaintiff alleges that Defendant Maricopa County

violated his right to due process when denying him the

right to (1) call witnesses, and (2) use a computer, real

estate expert and handwriting expert because he was

indigent. ([A.)

In Count Twenty-nine, Plaintiff alleges that he

was denied the opportunity to be heard on his unlawful

search and seizure claims. (Id.)

In Count Thirty, Plaintiff alleges that his duc

process rights and Sixth. Amendment right to confront

witnesses were violated when Defendant Maricopa

County offered inadmissible hearsay to prove essential

elements of the crimes charged. (Id.)

In Count Thirty-one, Plaintiff alleges that

Defendant Maricopa County, acting pursuant to a

municipal custom, failed to follow its own rules

regarding arrests, speedy trials, counsel and search

and seizure in prosecuting his trial, thus violating his

state created liberty interest. In Count Thirty-two,

Plaintiff alleges that Defendant Maricopa County

violated state law, in violation of his state created

liberty interests, when sentencing him to an

aggravated sentence. ((Id.)

In Counts Thirty-three, Thirty-four, Thirty-five,

Thirty-six, Thirty-seven Plaintiff alleges that

Defendant Maricopa County violated his Fourth, Sixth

and Fourteenth Amendment rights by (1) denying him

access to transcripts to assist him in preparing his

motion for new trial, (2) refusing to allow him to

present mitigating evidence at sentencing, (3) denying

him effective assistance of counsel because of his

indigence, (4) suppressing material false evidence, and

(5) threatening him that his sentence would be

enhanced, despite their knowledge that there was no

basis for the enhancement, to force him to plead guilty.

(Id.)

In Counts Thirty-eight, Thirty-nine and Forty

Plaintiff alleges that Defendants Maricopa County and

Maricopa County Attorney failed to (1) promulgate

appropriate procedures for use by its agents, which

procedures, if followed, would have prevented the

deprivations of his constitutional rights alleged, (2)

train its agents to prevent the alleged constitutional

violations, and (3) supervise its agents to prevent the

alleged constitutional

violations. (Id.)

In Counts Forty One, Forty-two, Forty-three,

and Forty-four Plaintiff alleges state law claims for

injury to his business reputation, intentional infliction

of emotional distress, and legal malpractice. (Id.)

In Count Forty-six, Forty-seven, and Forty-eight

Plaintiff alleges that Defendants violated 42 U.S.C.

1985(3) by conspiracy to deprive him of equal

protection of the laws because he had challenged their

unconstitutional practices. (Id.)

In Count Forty-nine. Plaintiff alleges that

Defendants seized his business in violation of his

Fourth and Fourteenth Amendments and the laws of

Calhfornia. (Id.)

Finally, in Count Fifty-three, Plaintiff alleges

that Defendants violated his rights guaranteed by

Article II of the Arizona Constitution. (1d.)

2. Futility of amendment

Plaintiffs proposed amended claims can _ be

grouped into three categories: (1) § 1983 claims; (2) §

1985(3) conspiracy claims; and (3) supplemental state

law claims.

a. Section 1983 claims

Under Heck, "(w]hen a state prisoner seeks

damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction

or sentence." Heck, 512 U.S. at 487. If the plaintiffs §

1983 claim would imply the invalidity of his conviction

or sentence, the claim does not arise until the

conviction or sentence is reversed, expunged,

invalidated or impugned by the grant of a writ of

habeas corpus. Id. at 489. Plaintiffs proposed

additional section 1983 claims would all be subject to

dismissal pursuant to Heck if the court granted him

leave to amend his complaint to add these claims.

Hence, Plaintiff will be denied leave to amend his

complaint to add the following claims: Counts Four,

Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve,

Thirteen, Fourteen, Fifteen, Sixteen, Seventeen,

Eighteen, Nineteen, Twenty, Twenty-one, Twenty-two,

Twenty-three, Twenty-four, Twenty-five, Twenty-six,

Twenty-seven, ‘l'wenty-eight, ‘l'wenty-nine, ‘Thirty,

Thirty-one, Thirty-two, Thirty-three, Thirty-four,

Thirty-five Thirty-six, Thirty-seven, Thirty-eight, and

Forty-nine.

b. Section 1985(3) claims

In Counts Forty-six, Forty-seven, Forty-eight,

Plaintiff alleges that Defendants conspired to deprive

him of his constitutional rights because he is Indian, in

violation of 42 U.S.C. § 1983(5). Although the

\Supreme Court's opinion in Heck = specifically

addressed only the viability of a § 1983 claim for

damages, the same principles apply to the visibility of a

§ 1983(5). Although the Supreme Court’s opinion in

Heck specifically addressed only the viability of a §

1993 claim for damages, the same principles apply to

the viability of a § 1985(3) claim for damages. See

Duamutef v. Morris, 956 F. Supp. 1112, 1117 (S.D.N-Y.

1997) (plaintiffs § 1985(3) claim would necessarily call

into question the validity of his criminal prosecution);

Horton v.Marovich, 925 F. Supp. 532, 437 (N.D. II.

1996); see also, Venegas v. Wagner, 704 F.2d 1144 (9th

Cir. 1983) (holding that, for statue of limitations

purposes, plaintiffs § 1985(3) conspiracy claim did not

accrue until reversal of his conviction). To allow

Plaintiff to proceed on his damages claim for conspiracy

to violate his constitutional rights, when Heck bars his

claim for damages for violation of his constitutional

rights, would be inconsistent with Heck's rationale

because it would allow a plaintiff to pursue a civil

rights damages claim for a violation of constitutional

rights when, without the allegation of conspiracy, no

damages claim is available for the alleged violation.

Hence, Plaintiff will be denied leave to amend to state

his 1985(3) claims alleged in Counts Forty-six, Forty-

seven and Forty-eight.

e. Supplemental state law claims

In Counts Forty-one, Forty-two, Forty-three, and Forty-

four, Plaintiff alleges state law claims for injury to his

business reputation, intentional infliction of emotional

distress and legal malpractice. In Count Fifty-three,

Plaintiff alleges that his rights under the Arizona

Constitution were denied. Because Heck does not apply

to state law claims, the Court will not deny Plaintiff

leave to state these claims on the ground that to do so

would be futile. However, in deciding whether to

retain

supplemental jurisdiction over these claims, the Court

has considered whether it retains original jurisdiction

over Plaintiffs complaint. Specifically, the Court is

concerned that none of Plaintiff's claims survive Heck.

3. Continuing viability of claims

remaining

After the Court's March 30, 1995 Order, the

following claims remained in the "McKay Complaint":

Counts One, Two, Three, Fifteen, Sixteen, Twenty,

Forty-five, Fifty, Fifty-one and Fifty-two. In its Order

dated January 18, 997, the Court dismissed Counts

Fifteen, Twenty, Forty-five, Forty-six, Forty-eight,

Fifty-two and Fifty-four, leaving only Counts One, Two,

Three, Sixteen, Fifty and Fifty-one.

In addition, the following claims remained in the

"Forfeiture Complaint":?! Counts Two, Three, Four,

Five, Six, Seven, Fight, Ten, Fourteen, Fifteen,

Sixteen, Seventeen, Eighteen, Nineteen, Twenty,

Twenty-two, Twenty-five, Twenty-six and Twenty-

seven. (Doc. 201.)

On reconsideration of those claims, the Court

has determined that Plaintiff has failed to establish

that his S 1983 claims for damages based on the acts

alleged in those counts are not barred by Heck.

a. McKay Complaint

In Counts One, Two and Three, Plaintiff

The Insurance Case was dismissed in its entirety on

September 30, 1996.

alleges that his arrest was unlawful, both in violation

of the United States Constitution and the Arizona

Constitution. In Count Sixteen, Plaintiff alleges that

Defendant Maricopa County denied his Fourth and

Fourteenth Amendment rights by providing a financial

incentive to Bondco to issue a bond for Plaintiff, even

though it knew that Bondco lacked authority to issue

bonds in Arizona. (Second Am. Compl. at A-D.) In

Count Fifty, Plaintiff alleges that Defendants arrested

him only to cause injury to his business. Finally, in

County Fifty-one, Plaintiff alleges that Defendants

violated A.R.S. § 11-532, which sets forth the powers

and responsibilities of the county attorney. Hence, in

Count Fifty-one, Plaintiff is apparently claiming that

the county attorney failed to perform his duties when

prosecuting Plaintiff.22

Although this Court earlier determined that

success on these claims would not necessarily imply the

invalidity of Plaintiffs conviction, Plaintiff has neither

alleged nor provided support for a finding that the state

trial court or appellate court found that Plaintiff did

suffer a constitutional violation, though the violation

did not invalidate the conviction. ‘he state court may

have found, for example, that the violation was

harmless error or that evidence seized in an unlawful

seizure was admissible because of the doctrine of

inevitable discovery. See Heck, 512 U.S. at 487 n.7.

Hence, the Court has determined that Plaintiff has

failed to meet his burden of establishing that success

on these claims would not imply the invalidity of his

conviction, and,his complaint must be dismissed,

22 Insofar as plaintiff is attempting to assert a state law

claim based on violation of this statue, this claim would be a

supplemental state law claim.

without prejudice.23

However, the Court will grant Plaintiff leave to

amend his complaint to allege facts which show that a

state court did find that he suffered a constitutional

violation, though the violation did not require reversal

or invalidation of his conviction. Noll v. Carlson, 809

F.2d 1446, 1448 (9th Cir. 1987) (pm se litigant must be

granted leave to amend her complaint unless the

amendment would be futile) .Plaintiff will be permitted

an opportunity to cure this defect with respect to all the

§ 1983 and § 1985(3) claims

4 Insofar as Plaintiff is attempting to assert a state law

claim based on violation of this statute, this claim

would be a supplemental state law claims raised in his

Second Amended "McKay" Complaint. Plaintiff may

assist the Court by stating, in his amended complaint,

specific facts establishing that a state court found a

constitutional violation with respect to each act alleged

to be a violation of his constitutional rights. If Plaintiff

fails to state specific facts showing that each individual

claim raised may proceed, each claim so deficient will

be dismissed.

Because the Court has resolved that all federal

claims alleged in the McKay Complaint must be

dismissed, it must determine whether to retain

jurisdiction over the supplemental state law claims. 28

U.S.C. § 1867. Although the Court would retain

jurisdiction over these claims were the federal claims to

go forward, the Court has resolved that the better

course is. to ‘decline to exercise supplemental

23 Because the Court finds that Plaintiffs federal claims

must be dismissed, it declines to continue to exercise

jurisdiction over Plaintiffs supplemental state law claims.

28 U.S. C. § 1367.

jurisdiction after determining that those federal claims

must be dismissed. The Court will reconsider this

decision if Plaintiff can allege facts permitting his

federal claims to go forward.

Hence, if Plaintiff files an amended complaint,

he may include the supplemental state law claims. If

the court finds that the federal claims survive, it will

retain jurisdiction over the supplemental state law

claims raised in Counts Forty-one, Forty-two, Forty-

three, Forty-four and Fifty-three of the McKay

Complaint.

b. Forfeiture Complaint.

With respectto the claims remaining in the

Forfeiture Complaint, the Court is concerned that

Plaintiff has failed to allege facts which show that the

allegations of constitutional violations alleged in his

claims for damages were resolved in his favor by the

state trial or appellate court. In other words,

Plaintiff has not established that the constitutional

violations alleged in the Forfeiture Complaint survive

his conviction. Hence, the Court will grant Plaintiff an

opportunity to establish that the conviction in his

criminal case does not preclude his claims for damages.

Accordingly,

IT IS ORDERED granting in part and denying

in part Plaintiffs Motion for Reconsideration due to

change in facts (Doc. 313-1). Plaintiffs complaint is

dismissed in its entirety, without prejudice. Plaintiff

shall have sixty (60) days in.which to file an amended

complaint, curing the deficiencies stated in this Order

with respect to the allegations contained in the Second

Amended Complaint filed in CIV-94-170-PHX-ROS at

Doc. 82. Plaintiff is warned that failure to comply with

the terms of this Order may result in dismissal of this

action without further notice. Ferdik v. Bonzelet, 963

F.2d 1258, 1260 (9th Cir. 1992), cert. denied, 506 U.S.

915 (1992).

FURTHER ORDERED denying as_ moot

Plaintiffs Motion to Reopen Discovery (Doc. 312-1).

FURTHER ORDERED that Plaintiff shall file

a supplemental memorandum, establishing that his

claims for damages arising from the civil forfeiture are

not barred by Heck no later than sixty (60) days from

the date of this Order. If Plaintiff fails to establish that

his claims survive, the Court will consider at that time

whether to dismiss the Forfeiture Complaint in its

entirety.

FURTHER ORDERED withdrawing the

reference from the Magistrate Judge for the purpose of

determining whether Plaintiffs complaints survive

Heck. If the Court determines that any of Plaintiff's

claims may proceed, it will refer the matter back to the

Magistrate Judge to prepare for trial.

DATED this 2nd day of September, 1997.

S/D

ROSYLN O SILVER

US District Court Judge

copies to all counsel of record

FILED COPY

DECEMBER 4, 2001

CLERK S DISTRICT

COURT ARIZONA

IN THE 'UNITED STATES DISTRICT COURT

FOR THE, DISTRICT OF ARIZONA

Gunn McKay, et al.,

Defendants,

) No. CIV 94-0170-

Anant Kumar Tripati, ) PHX-ROS

Plaintiff, )

VS. )

) ORDER

)

A. Background.

Before the Court for screening is Plaintiff's

[Fourth] Amended Complaint (Doc. No. 321), based on

diversity jurisdiction and 42 U.S.C. § 1988. Earlier

complaints are: (1) the original Complaint filed in the

Central District of California on May 13, 1993 (Doc. No.

1); (2) the First Amended Complaint filed in the

Central District of California on May 27, 1993 (Doc. No.

4); (3) the Second Amended Complaint (the "McKay

Complaint") filed on March 8, 1994 after the California

lawsuit was transferred to this Court (Doc. No. 82); and

(4) the Third Amended Complaint (the "Forfeiture

Complaint") filed on July 18, 1995, alleging claims

formerly brought in CIV-94-0504-PHX-ROS, which was

consolidated with this case

(Doc. No. 201).

B. Statutory Screening of Prisoner Complaints.

The Court is required to screen complaints

brought by prisoners’ seeking relief against a

governmental entity or officer or employee of a

governmental entity. 28 U.S.C. § 1915A(a). The Court

must dismiss a complaint or portion thereof if the

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 4 relief. 28 U.S.C.

§ 1915A(b)(1),(2). The Court also must dismiss a

complaint or portion thereof if Plaintiff fails to exhaust

any administrative remedy available to him. 42 U.S.C.

§ 1997e(a).

C. Fourth Amended Complaint.

The Fourth Amended Complaint generally

alleges improprieties involving Plaintiff's arrest and

seizure of his property. However, the Court is unable to

determine the precise number and nature of Plaintiff's

claims. Named as Defendants are: Gunn McKay; Dean

Chatfield; Terry Blake; Donald E. Conrad; Richard

Mesh; Richard M. Romley; Ronald

Harris; Vincent Tolino; Gerald Grant; Estate of Teresa

Archuleta; Estate of Ed King; Jessica Funkhouser,

Betsey Bayless; Tom Rawles; Don Stapley; Mary Rose

Wilcox; and Maricopa County. Plaintiff seeks monetary

damages.

D. Failure to Make Short, Plain Statement of

Rule 8(a) of the Federal Rules of Civil Procedure

requires that a complaint contain a short and plain

statement of the claim showing that the pleader is

entitled to relief.” Rule 8(e)(1) of the Federal Rules of

Civil Procedure states that "[elach averment of a

pleading shall be simple, concise, and direct." A

complaint having the factual elements of a cause of

action present but scattered throughout the Complaint

and not organized into a "short and

21 plain statement of the claim" may be dismissed for

failure to satisfy Rule 8(a) of the Federal Rules of Civil

Procedure. Spading v. Hoffman Constr. Co., 864 F.2d

635, 640 (9th Cir. 1988); McHenry v. Renne, 84 F.3d

1172 (9th Cir. 1996).

In order to assist litigants to understand the

Rule 8 requirement that averments "be simple, concise,

and direct,” Rule 84 of the Federal Rules of Civil

Procedure provides for an Appendix of Forms,

"intended to indicate the simplicity and brevity of

statement which the rules contemplate." McHenry, 84

F.3d at 1177. The Ninth Circuit, demonstrating

the type of allegation which makes a short plain

statement of a § 1983 claim, quoted Form 9 (Complaint

for Negligence) of that Appendix:

1. Allegation of jurisdiction.

2. On June 1, 1936, in a public highway called

Boylston Street in Boston, Massachusetts,

defendant negligently drove a motor

vehicle against plaintiff who was then crossing

said highway.

3. As a result plaintiff was thrown down and had

his leg broken, and was otherwise injured, was

prevented from transacting his_ business,

suffered great pain of body and mind, and

incurred expenses for medical attention and

hospitalization in the sum of one thousand

dollars.

Id.

The court went on to say:

This complaint fully sets forth who is being sued,

for what relief, and on what theory, with enough

detail to guide discovery. It can be read in

seconds and answered in minutes.

Id.

Plaintiffs Fourth Amended Complaint fails to

provide “a short and plain statement of the claim."

Fed.R.Civ.P.8(a). Plaintiffs various statements of his 43

claims incorporate 38 paragraphs of facts, fail to

identify the specific Defendants against whom each

claim is alleged, in many cases are duplicative of other

claims, and fail to differentiate between factual

allegations and allegations of injury,

Because Plaintiff has failed to identify the

specific Defendants in relation to each of

his claims, it would be, as a _ practical matter,

impossible for the Defendants to draft an

answer to the Fourth Amended Complaint in its

present form. Therefore, the Fourth

Amended Complaint will be dismissed with leave to

amend to allow Plaintiff to clearly allege

his claims in_ short, plain’ statements’ which

demonstrate he is entitled to relief. In the Fifth

Amended Complaint, Plaintiff must tell the Court: (1)

the constitutional rights Plaintiff

23 believes were violated; (2) the name of the

Defendant(s) who violated the right; (3) exactly

what the Defendant(s) did or failed to do; (4) how the

action or inaction of the Defendant is

connected to the violation of Plaintiff's constitutional

right; and (5) what specific injury

Plaintiff suffered because of the Defendant's conduct.

Rizzo _v. Goode, 423 U.S. 362, 371- 72, 377 (1976).

Plaintiff must repeat this process for each person he

names as a Defendant in connection with a

constitutional claim. If Plaintiff fails to effirmatively

link the conduct of each named Defendant with the

specific injury suffered by Plaintiff, tke allegation

against that Defendant will be dismissed tur failure to

state a claim.

With respect to the claims he alleges under

diversity jurisdiction, Plaintiff must clearly state: (1)

the legal right or privilege Plaintiff believes was

violated and that entitles him to relief; (2) the name of

the Defendant(s) who violated the right or privilege; (3)

exactly what the Defendant(s) did or failed to do; (4)

how the action or inaction of the Defendant(s) is

connected to the violation of Plaintiffs right or

privileges under the law; and (5) what specific injury

Plaintiff suffered because of the Defendant's conduct.

See Rule 8(a),(e), FED.R.CIV.P.

Further, the Court notes that Plaintiff

indiscriminately mixes his references to constitutional,

statutory, common, Arizona state and California state

law. In each count he alleges in the Fifth Amended

Complaint, Plaintiff must specifically state the

authority under which he brings that claim. Failure to

do so will result in the dismissal of that claim.

In drafting his Fifth Amended Complaint,

Plaintiff should pay special attention to the statement

of claim set out in the Appendix of Forms, cited with

approval by the Ninth Circuit Court of Appeals in

McHenry, and provided to Plaintiff; above, in this

Order.

E. Compliance With Local Rule 3.1l(a): Only One

Claim Per Count,

Further, Plaintiff must comply with Local Rule

3.1(a) of the Local Rules of Practice for the Umited

States District Court for the District of Arizona. Local

Rule 3.1(a) requires that all complaints by prisoners be

in accordance with the instructions provided in the

court-approved civil rights complaint form. Specifically,

the instructions provide that Plaintiff "MAY ALLEGE

THE VIOLATION OF ONLY ONE CIVIL RIGHTS

CLAIM PER COUNT." See Information and

Instructions for a Prisoner Filing Civil Rights

Complaint in the United States District Court for the

District of Arizona Form, at 4 (emphasis in original);

see also, Complaint form at 4, 5 and 6 ("if your claim

involves more than one issue, each issue should be

stated in a different count"). Accordingly, in any Fifth

Amended Complaint, Plaintiff may allege only one

claim per count. If Plaintiff alleges more than three

counts (the form provides space to allege three separate

counts), Plaintiff must provide the necessary

information about each additional count on separate

pages.

F. Failure to State a Claim.

Although the dismissal of the Fourth Amended

Complaint with leave to amend is based on Rule 8 and

Plaintiff's failure to make a short, plain statement of

his 43 claims, the Court will further screen the Fourth

Amended Complaint to ensure that Plaintiff is allowed

the opportunity to cure the deficiencies of his claims.

However, the Fifth Amended Complaint will be

Plaintiffs find opportunity to amend.

The Court will assign a number to each count of

the Fourth Amended Complaint based on Plaintiffs

designation of those claims. In the future, the parties

will be required to refer to those claims based on the

numbering system used in this Order.

1. Count One

In Count One, Plaintiff claims that unidentified

Defendants seized his property in violation of the

Fourth Amendment. Because Plaintiff fails to identify

the individual Defendants who violated his

constitutional rights, the claim must be dismissed with

leave to amend. See Rizzo, supra.

2. Count Two

In Count Two, Plaintiff alleges that unidentified

Defendants seized his property in violation of the

Arizona and California constitutions. Again, because

Plaintiff fails to identify the individual Defendants who

violated his constitutional rights, the claim must be

dismissed with leave to amend under Rizzo.

3. Count Three

In Count Three, Plaintiff alleges that

unidentified Defendants entered his office and seized

his property, thereby committing torts of wrongful

seizure and invasion of privacy. Again, Plaintiff fails to

identify the individual Defendants who allegedly

committed these torts. Further, a federal court applies

substantive state law in a diversity action. Plaintiff has

failed to allege whether these claims are brought under

Arizona or California state law. Accordingly, this claim

must be dismissed with leave to amend.

4. Count Four

In Count Four, Plaintiff alleges that unidentified

Defendants manufactured probable cause for the

search and seizure of Plaintiff's office and personal

property in violation of the Fourth and Fourteenth

Amendments. This claim is redundant because Plaintiff

has already alleged lack of probable cause for the

search and seizure in Count One. Accordingly, this

Count will be dismissed and may not be realleged in

the Fifth Amended Complaint.

5. Count Five

In Count Five, Plaintiff alleges that unidentified

Defendants “abused process" because their purpose in

seizing the records was to destroy them. Again,

Plaintiff has failed to identify the individual

Defendants who allegedly injured him and has failed to

allege whether this claim arises under federal, Arizona

or California law. Accordingly, this Count will be

dismissed with leave to amend.

6. Count Six

In Count Six, Plaintiff alleges that unidentified

Defendants falsely arrested his property, negligently

falsely imprisoned his property, and were recklessly

incompetent in their investigation. This Count is

duplicative of Count Three in which Plaintiff alleges

the tortuous seizure of his property. His allegation that

Defendants were reckless in their investigation is

duplhcative of Plaintiffs “lack of probable cause" claim

raised in Count One. Accordingly, this Count will be

dismissed and may not be realleged in the Fifth

Amended Complaint.

7. Count Seven

In Count Seven, Plaintiff alleges that

unidentified Defendants took custody of his property in

violation of the Fourth and Fourteenth Amendments.

This Count is duplicative of Count One. Accordingly,

this Count will be dismissed and may not be realleged

in the Fifth Amended Complaint.

8. Count Eight

In Count Eight, Plaintiff alleges that the seizure of his

property by unidentified Defendants violated the

California constitution. This Count is duplicative of

Count Two. Accordingly, this Count will be dismissed

and may not be realleged in the Fifth Amended

Complaint.

9. Count Nine

In Count Nine, Plaintiff alleges that unidentified

Defendants committed tortious theft 8 under California

state law when they seized his property. Because

Plaintiff fails to identify the individual Defendants who

allegedly committed the tort, this Count will be

dismissed with leave to amend.

10. Count Ten

In Count Ten, Plaintiff alleges that unidentified

Defendants impaired or interfered with the goodwill

associated with his former business when they seized

computer software necessary to the function of the

business. Plaintiff fails to identify the individual

Defendants who allegedly committed this act and fails

to allege whether this claim arises under federal,

Arizona or California law. Accordingly, this Count will

be dismissed with leave to amend.

11. Count Eleven.

In Count Eleven, Plaintiff realleges that the

seizure of his property constituted theft. This Count is

duplicative of Count Nine. Accordingly, this Count will

be dismissed and may not be realleged in the Fifth

Amended Complaint.

12. Count Twelve

In Count Twelve, Plaintiff alleges that the

seizure of his property without compensation by

unidentified Defendants violates the Fourth and

Fourteenth Amendments. Plaintiff fails to identify the

individual Defendants who allegedly committed this

act. Further, it appears that this claim arises under the

Fifth Amendment rather than the Fourth or

Fourteenth. Accordingly, this Count will be dismissed

with leave to amend.

13. Count Thirteen

In Count Thirteen, Plaintiff alleges that Dean

Chatfield unlawfully arrested him and searched his

office in California. The unlawful search claim is

duplicative of Count One. Accordingly, it will be

dismissed and may not be realleged as a separate count

in the Fifth Amended Complaint.

Plaintiffs claim that he was unlawfully arrested

is barred by the holding in Heck v, Humphrey, 512 U.S.

477 (1994). Plaintiffs interpretation of Arizona's

procedural rules notwithstanding‘, the Ninth Circuit

has held where a civil rights complainant alleges that

police officers lacked probable cause to arrest him and

conspired to

bring unfounded criminal charges against him, the

Court must apply the holding of Heck, which bars a §

1983 action where judgment in a plaintiff's favor would

imply the invalidity of the sentence or conviction.

Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996).

Therefore, any claims regarding lack of probable cause

24 The Court notes that a number of exceptions to

procedural bar exist in both state and federal

context. Because the court cannot be certain that

one of these exceptions will not be applied in

Plaintiffs case in the future, the Court must

consider the possibility that judgment to this

claim in Plaintiffs favor would necessarily imply

the invalidity of Plaintiff's convictions.

for arrest and a conspiracy to bring unfounded criminal

charges against Plaintiff (b

which are alleged in the Fourth Amended Complaint)

may only be reviewed by this Court if Plaintiff can

demonstrate that his conviction or sentence "has been

reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make

such determination, or called into question by a federal

court's issuance of a writ of habeas corpus, 28 U.S.C. §

2254." Heck, 512 U.S. at 486. Plaintiff has not done so.

Accordingly, this claim must be dismissed.

14. Count Fourteen

In Count Fourteen, Plaintiff alleges that his extradition

from California to Arizona was improper under the

Uniform Criminal Extradition Act. A claim alleging

violation of the federal extradition statute, 18 U.S.C. §

3182, by local law enforcement agents states a cause of

action under § 1983. Draper v. Coombs. 792 F. 2d 915,

920 (9th Cir. 1986).25 The Court notes that a number of

exceptions to procedural bar exist in both state and

federal contexts. Because the Court cannot be certain

that one of these exceptions will not by applied in

Plaintiffs case in the future, the Court must consider

the possibility that judgment on this claim in Plaintiffs

favor would necessarily imply the invalidity of

Plaintiffs convictions of action under § 1983, Draper v.

2S However, Plaintiff should note that if he was returned

to the demanding state and there convicted of the

charges against him, he suffers no actual injury, and

may sue for nominal damages only. Id. Nominal

damages in the Ninth Circuit are $1.00. See Floyd v

Laws, 929 F. 2d 1390, 1401 (9t Cir. 1991); see also,

Wiggins v. Rushen, 760 F.2d 1009, 1012 (9% Cir. 1985)

(award of nominal damages may not exceed $1.00).

Coombs, 792 F.2d 915, 920 (9th Cir. 1986).2 However,

Plaintiff must identify the individual Defendants who

allegedly acted in violation of the statute and explain

how their actions violated the statute. Accordingly,

Count Fourteen will be dismissed with leave to amend.

15. Count Fifteen

In Count Fifteen, Plaintiff alleges further

improprieties regarding his extradition. These claims

should be alleged in Count Fourteen of the Fourth

Amended Complaint and may not be alleged in a

separate count in the Fifth Amended Complaint.

16. Count Sixteen

In Count Sixteen, Plaintiff alleges that he was

detained for 115 days without receiving a judicial

determination on the issue of probable cause. See

Gerstein v. Pugh, 1420 U.S. 103, 126 (1975) (holding

that Fourth Amendment requires judicial

determination of probable cause as prerequisite to

detention). Plaintiff fails to name any Defendant in

connection with this claim. Accordingly, Count Sixteen

will be dismissed with leave to amend to allow Plaintiff

to identify the Defendants whose conduct caused his

injury.

ya Count Seventeen

In Count Seventeen, Plaintiff again challenges

the propriety of the search and seizure of his property,

claiming that unidentified Defendants' conduct was

motivated by racial discrimination. It appears Plaintiff

is alleging a violation of Equal Protection. Therefore, in

his Fifth Amended Complaint, Plaintiff must identify

the Defendants who violated his rights, the suspect

class to which he belongs, and the fundamental right

violated by Defendants' conduct. If Plaintiff is unable to

identify a fundamental right, he must allege, if he can

do so in good faith, that the conduct of Defendants at

issue is not rationally related to a legitimate

government interest.

18. Count Eighteen

In Count Eighteen, Plaintiff claims that he was

arrested and prosccuted because he is an East Indian,

a racial minority. To find the Plaintiff was arrested and

prosecuted solely on the basis of his race would

necessarily imply the invalidity of his conviction.

Accordingly, this claim is barred by ads unless Plaintiff

can show that his conviction has been invalidated.

Because Plaintiff has failed to do so, this claim must be

dismissed.

19. Count Nineteen

In Count Nineteen, Plaintiff claims that

Defendants Grant, Romley, McKay and Conrad gave

other unnamed Defendants some unspecified "incorrect

legal advice," in violation of the Fourth and Fourteenth

Amendments. Plaintiff fails te affirmatively link the

conduct of Defendants to a specific constitutional

injury. Accordingly, Count Nineteen will be dismissed

with leave to amend.

20. Count Twenty

In fact, there is no Count Twenty. Plaintiff

appears to skip from Count Nineteen to Count Twenty-

One. For purposes of continuity, the Court notes that

there is no Count Twenty and Count Twenty may not

appear in the Fifth Amended Complaint.

21. Count Twenty-One

In Count Twenty-One, Plaintiff alleges that

unidentified Defendants intentionally interfered with

his prospective business relationships. Plaintiff fails to

identify the specific Defendants whose conduct he

alleges caused his injury and fails to allege whether his

claim arises under federal, Arizona or California law.

Accordingly, Count Twenty-One will be dismissed with

leave to amend.

22. Count Twenty-Two

In Count Twenty-Two, Plaintiff claims that

unidentified Defendants failed to promulgate

appropriate rules and regulations, causing unspecified

injuries to Plaintiff. Plaintiff fails to identify the rules

and regulations, the Defendants and the injuries to

which he refers. Further, Plaintiff fails to demonstrate

the affirmative link between the failure to promulgate

certain rules and the specific injury he suffered as a

result. Accordingly, Count Twenty-Two will be

dismissed with leave to amend.

23. Count Twenty-Three

In Count Twenty-Three, Plaintiff alleges that

unidentified Defendants agreed to provide him certain

documents but failed to do so. Plaintiff claims that

Defendants’ conduct resulted in a denial of access to

the courts, a denial of due process, fraud, and breach of

contract. To establish that he was denied meaningful

access to the courts, a plaintiff must submit evidence

showing that he suffered an "actual injury" as a result

of the Defendants' actions. See Lewis v. Casey, 518

U.S. 343 (1996) (holding that an inmate bringing an

access to the courts claim must establish that he has

suffered an "actual injury"). Plaintiff has failed to

allege an actual injury. Further, Plaintiff fails to

identify the Defendants whose conduct caused his

injury. In addition, Plaintiff fails to allege any of the

elements of breach of contract or fraud and to explain

whether these claims arise under federal, Arizona or

California law, Accordingly, Count Twenty-Three will

be dismissed with leave to amend.

100

24, Count Twenty-Four

In Count Twenty-Four, Plaintiff claims that

unidentified Defendants in their official capacity

violated his rights and the "rights" of his property.

Plaintiff fails to identify the individual Defendants who

caused his alleged injury, the nature of the “special

relationship" he claims existed between him and

Defendants and the nature of the alleged injur s. 22

Accordingly, Count Twenty-Four will be dismissed with

leave to amend.

25. Count Twenty-Five

In Count Twenty-Five, Plaintiff claims that

unidentified Defendants failed to enforce unidentified

rules and regulations, causing unspecified injuries.

Count Twenty-Five will be dismissed with leave to

amend to allow Plaintiff to identify the Defendants, the

rules they failed to enforce, and Plaintiffs alleged

injuries resulting from Defendants' conduct.

26. Count Twenty-Six

In Count Twenty-Six, Plaintiff claims that unidentified

Defendants failed to adequately train their employees,

causing "the wrongs set forth in this complaint."

Plaintiff has failed to identify the Defendants whose

conduct caused his injuries. In addition, Plaintiff has

failed to link the alleged failure to train with his

injuries. Further, Plaintiff has generally alleged that

he suffered "the wrongs set forth in this complaint," but

fails to identify the injuries specifically related to this

count. Accordingly, Count Twenty-Six will be dismissed

with leave to amend.

27. Count Twenty-Seven

In Count Twenty-Seven, Plaintiff claims that

unidentified supervisory Defendants failed to

adequately supervise other unidentified Defendants,

10]

resulting in the injuries set out in the Fourth Amended

Complaint. Conclusory and vague allegations will not

support a cause of action. lvey v. Board of Regents of

the Univ. of Alaska, 673 F.2d 266 (9th Cir. 1982). Even

a liberal interpretation of a civil rights complaint may

not supply essential elements, of the claim that were

not initially pled. ld. at 268. Therefore, Count Twenty-

Seven will be dismissed with leave to amend to allow

Plaintiff to supply the required elements of his claim

and to link the conduct of individual Defendants with a

specific injury.

28. Count Twenty-Kight

In Count Twenty-Eight Plaintiff claims that

unidentified Defendants failed to perform some

unidentified statutory duties resulting in “the wrongs

set forth in this complaint." Again, conclusory and

vague allegations do not support a cause of action.

Accordingly, Count Twenty-Eight will be dismissed

with leave to amend to allow Plaintiff to identify

individual Defendants whose conduct caused his

injuries, the statutory duties they failed to perform,

and to link this conduct to a specific injury suffered by

Plaintiff.

29. Count Twenty-Nine

In Count Twenty-Nine, Plaintiff claims

unidentified Defendants acted in excess of their

authority in some unidentified circumstance. Again,

conclusory and vague allegations do not support a

cause of action. Accordingly, Count Twenty-Nine will

be dismissed with leave to amend to allow Plaintiff to

identify individual Defendants whose conduct caused

his injuries and to link this conduct to a specific injury

suffered by Plaintiff.

30. Count Thirty

102

In Count Thirty, Plaintiff claims:

Defendants failed to do what they should have done,

failed to correctly do what they did, did incorrectly

what they did, failed to exercise reasonable care in

what they did, acted unjustly, all without excuse or

justification, hence committing the wrongs in the

complaint.

Fourth Amended Complaint, Add. at 10.

Plaintiff's vague allegations fail to state a claim.

Accordingly, Count Thirty will be dismissed with leave

to amend to allow Plaintiff to identify individual

Defendants whose conduct caused his injuries and to

link this conduct to a specific injury suffered by

Plaintiff.

31. Count Thirty-One

In Count Thirty-One, Plaintiff claims that

unidentified Defendants retaliated against Plaintiff for

being East Indian and for challenging some unspecified

conduct of the Defendants. Plaintiff fails to identify the

Defendants whose alleged conduct caused his injury

and fails to allege how Defendants retaliated against

him. When an inmate brings a claim of retaliation, he

must allege that the official acted in retaliation for the

exercise of a constitutionally-protected right, and that

the action “advanced no _ legitimate penological

interest." Hines v. Gomez, 108 F.3d 265, 267 (9th Cir.

1997); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.

1994). Therefore, Count Thirty-One will be dismissed

with leave to amend to allow Plaintiff to identify the

Defendants whose conduct caused his alleged injuries,

to identify the conduct Plaintiff alleges was retaliatory

and to allege that the retaliatory act advanced no

legitimate penological interest.

32. Count Thirty-Two

In Count Thirty-Two, Plaintiff appears to allege

that unidentified Defendants who are employees or

agents of Maricopa County engaged in a "code of

silence" which enabled them to commit all of the

constitutional and statutory torts alleged in his

pleading. Again, conclusory and vague allegations do

not support a cause of action. Accordingly, Count

Thirty-Two will be dismissed with leave to amend to

allow Plaintiff to identify individual Defendants whose

conduct caused his injuries and to link this conduct to a

specific injury suffered by Plaintiff.

33. Count Thirty-Three

In Count Thirty-Three, Plaintiff alleges that

unidentified Defendants acted to "cover up" all of the

constitutional and common law torts alleged in his

pleading. This Count fails to state a claim. The Court is

unaware of any constitutional or common law right to

be free of “cover up.” Plaintiff may not reallege this

‘laim in the Fifth Amended Complaint unless he can

demonstrate an independent and specific violation,

identify the Defendants who committed the violation,

and demonstrate an affirmative link between the

Defendants’ conduct and a specific injury.

34. Count Thirty-Four

In Count Thirty-Four, Plaintiff alleges that

unidentified Defendants committed all the acts alleged

in Plaintiff's pleading under color of state law and in

violation of 42 U.S.C. § 1983. This does not state an

independent claim. 42 U.S.C. § 1983 simply provides a

private cause of action for a constitutional violation.

There is no per se violation of § 1983. Further, the

allegation that Defendants acted under color of state

law is an element required of any claim of

104

constitutional violation. It does not of itself state a

cognizable claim. Accordingly, Count Thirty-Four will

be dismissed and may not be realleged in the Fifth

Amended Complaint.

35. Count Thirty-Five

In Count Thirty-Five, Plaintiff provides a

narrative relating his alleged conversations with the

late Teresa Archuleta in support of his claim that a

number of Defendants entered into a conspiracy to

violate his constitutional rights.

"In a civil conspiracy, the conspiracy itself is not

a cause of action ... it is the overt action which causes

the civil injury and resulting damage." Hoffman _ v.

Halden, 268 F.2d 280, 295 (9th Cir. 1959), overruled on

Other grounds, Cohen v. Norris, 300 1.2d 24 (9th Cir. 2

1962). Because the damage in a civil conspiracy flows

from the overt acts and not from theconspiracy, the

complaint "must set forth with certainty facts showing

particularly what a defendant or defendants did to

carry the conspiracy into effect and whether such acts,

in the normal course of events, would proximately

cause injury to the plaintiff." _ Id. Here, Plaintiff alleges

the overt acts which carried the conspiracy into effect

were the submission of a false affidavit in the

extradition proceedings and some unspecified conduct

by Defendant Ronald Harris to facilitate the improper

forfeiture of Plaintiffs property.

To the extent this Count challenges the propriety

of his extradition proceedings; the claim must be

included upon amendment of the pleading in Count

Fourteen. To the extent this Count challenges the

propriety of the seizure of his property for the purpose

of forfeiture; the claim must be included upon

amendment of Count One. Further, Plaintiff must

105

specify that conduct of Defendant Harris’ which

resulted in a_ specific constitutional injury. Count

Thirty-Five may not be realleged in the Fifth Amended

Complaint.

36. Count Thirty-Six.

In Count Thirty-Six, Plaintiff alleges that

unidentified Defendants, while carrying concealed

weapons, entered into a conspiracy to commit all the

wrongs alleged in the pleading based on Plaintiffs East

Indian origin. Plaintiff may (and has) allege specific

incidents of violation of the Equal Protection Clause.

However, a conclusory allegation of conspiracy which

includes every injury alleged in the complaint fails to

state a claim. Accordingly, Count Thirty-Six will be

dismissed and may not be realleged in the Fifth

Amended Complaint. The Court notes that possession

of 2 concealed weapon is not of itself a constitutional

violation and does not make the fact of a constitutional

violation more or less likely. Therefore, possession of a

concealed weapon by a Defendant is irrelevant, and any

reference to that possession is inappropriate.

37. Count Thirty-Seven

In Count Thirty-Seven, Plaintiff alleges that

unidentified Defendants engaged in a Conspiracy

under 42 U.S.C. § 1985(3) to deprive him of his civil

rights based on his status as an East Indian, which

Plaintiff claims is a racial minority.

To state a claim under 42 U.S.C. § 1985(8), a

complaint must allege (1) a conspiracy, (2) to deprive

any person or a class of persons of the equal protection

of the laws, or of equal privileges and immunities

under the laws, (3) an act by one of the conspirators in

furtherance of the conspiracy, and (4) a personal injury,

property damage or a deprivation of any right or

privilege of a citizen of the United States. Griffin v.

Breckenridge, 403 U.S. 88, 102-103 (1971).

Additionally, there must be some "racial or

perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ action."

Id. To make the requisite showing of class-based

animus "the plaintiff must be a member of a class that

requires special federal assistance in protecting its civil

rights." Gerritsen v. de la Madrid Hurtado, 819 F.2d

1511, 1519 (9th Cir. 1987). Plaintiff has failed to

identify the Defendants whose conduct’ allegedly

deprived him of his civil rights and to present facts

which demonstrate an affirmative link between their

conduct and Plaintiff's specific injury. Accordingly, this

Count will be dismissed with leave to amend.

38. Count Thirty-Eight

In Count Thirty-Eight, Plaintiff alleges that

Defendants engaged in the conduct alleged in Count

Thirty-Seven. This claim is clearly duplicative and will

be dismissed. Count Thirty-Kight may not be realleged

in the Fifth Amended Complaint.

39. Count Thirty-Nine

In Count Thirty-Nine, Plaintiff alleges that

Defendants violated his civil rights under 42 U.S.C. §

1981. 42 U.S.C. § 1981 "prohibits racial discrimination

in the making and enforcement of private contracts."

Patterson v. McLean Credit Union, 491 U.S. 164, 174

(1989). Where an alleged act of discrimination does not

involve the impairment. of the right to make or enforce

a Contract, § 1981 provides no relief. 14. at 176. In this

case, Plaintiff challenges the manner in which

Defendants effected his arrest and prosecution and the

seizure of his property, This case does not present the

circumstance for which Congress provided a remedy

107

under § 1981. Accordingly, Count ‘Thirty-Nine will be

dismissed for failure to state a claim and may not be

realleged in the Fifth Amended Complaint.

40. Count Forty

In Count Forty, Plaintiff alleges that

unidentified Defendants violated 42 U.S.C. § 1986

when they failed to prevent his injuries as set out in

the entire complaint. First, Plaintiff has failed to

identify any Defendant in connection with this claim

and has failed to link the conduct of any Defendant

with his alleged injuries. Further, a claim under 42

U.S.C. § 1986 is derivative of a claim under 42 U.S.C, §

1985. Therefore, a claim can be stated under section

1986 only if the complaint contains a valid claim under

section 1985. McCalden v, California Library Ass'n, 955

F.2d 1214, 1223 (9th Cir. 1990), cert. denied, 504 U.S.

957 (1992). This Order dismisses Plaintiff's § 1985

claims as alleged in Counts Thirty-Seven and Thirty-

Kight. Accordingly, this Count must be dismissed

without prejudice.

41. Count Forty-One

In Count Forty-One, Plaintiff claims that

unidentified Defendants "aided and abetted" each other

to commit the torts alleged in the complaint. "Aiding

and abetting" is a term of art of criminal law. In this

instance, it is simply duplicative of Plaintiff's attempts

to allege conspiracy. Accordingly, Count Forty-One will

be dismissed and may not be realleged in the Fifth

Amended Complaint.

42. Count Forty-Two

In Count Forty-Two, Plaintiff claims unidentified

Defendants violated certain sections of the Arizona and

California constitutions. Plaintiff does not explain how

the enumerated sections of the Arizona and California

108

constitutions were violated. Plaintiff must identify the

individual Defendants whose conduct caused his

specific injuries and must affirmatively lnk a

Defendant's conduct to a specific constitutional injury.

Accordingly, Count Forty-Two

2 will be dismissed with leave to amend.

43. Count Forty-Three

In Count Forty-Three, Plaintiff claims that the

Maricopa County Board of Supervisors, by authorizing

the defense of Maricopa County employees who are

accused of constitutional violations and the payment of

judgments entered against those employees,

encourages further constitutional violations. Therefore,

Plaintiff claims, the past conduct of the Board of

Supervisors enabled and encouraged’ unidentified

Defendants to commit the wrongs alleged in the

complaint. Plaintiff fails to state a claim.

Plaintiff relies specifically upon Trevino v. Gates,

23 F.3d 1480 (9th Cir. 1994). However, the Trevino

holding is actually directed to the issue of absolute

immunity of the Los Angeles City Council for the

performance of certain of its duties. The court

discussed the Los Angeles City Council's lack of

immunity for its decisions to pay punitive damages

awards for city employees on a. case-by-case basis. The

court did not find that the Council's authorization of

payment of punitive damages was unconstitutional.

However, even if the Ninth Circuit had found the

Council's actions improper, that finding would not

support Plaintiff's claim. Punitive damages are

awarded only upon a finding of bad faith on the part of

a defendant ate Rawlings v. Apodaca, 151 Ariz. 149,

162, 726 P.214 565, 576 (1986) 19 (punitive damages

are restricted to "those cases in which the defendant's

109

wrongful conduct was guided by evil motive").

Here, Plaintiff alleges only that the Board of

Supervisors authorizes payment for the defense of

county employees in civil rights litigation and the

award of judgments against them. Plaintiff does not

allege that the Maricopa County Board of Supervisors

reviews the award of "evil motive" punitive damages

and improperly authorizes payment of those awards.

Accordingly, Plaintiff fails to affirmatively allege a

causal connection between the Board's conduct and the

alleged deliberate and "evil" acts of the county

employees named as Defendants to this action.

Accordingly, Count Forty-Three must be dismissed

with leave to amend.

G. Application to Proceed In Forma Pauperis

In Screening the Fourth Amended Complaint,

the Court performed a substantive review of the record

in this case. The Court has discovered that the District

Court for the Central District of California

inadvertently failed to rule on Plaintiffs application to

proceed in forma pauperis which was attached to the

original Complaint filed on May 13, 1993. Because this

case was filed prior to the enactment of the Prison

Litigation Reform Act, the Court applies the pre-PLRA

standard to determine whether Plaintiff should be

allowed to proceed in forma pauperis and without

payment of the filing fee. Under Rule 53(c), Rules of

Practice of the United States District Court for the

District of Arizona (1993), a prisoner was allowed to

proceed without payment of the filing fee if he had less

than $400 in his inmate accounts. Plaintiffs affidavit,

certified by an officer of the Maricopa County Jail,

indicates that at the time of filing his inmate account

balance was $39.80. Accordingly, the Court will grant

110

Plaintiff leave to proceed in forma pauperis, nunc pro

tunc, May 13, 1993.

H. Instructions and Warning of Possible

Dismissal Pursuant to Rule 41.

This order screens the Fourth Amended

Complaint and dismisses it with leave to amend.

Presumably, it will take another order to direct that

service of a screened pleading, the Fifth Amended

Complaint, be effected on Defendants. Despite the lack

of substantive progress in this case, the Court notes

that there have been 366 documents filed in this action.

Clearly, the time has come for the Court to take

affirmative steps to move this case forward.

District courts have the inherent power to

manage their dockets. Hamilton Copper & Steel Corp.

v. Primary Steel, Inc, 898 F.2d 1428, 1429 (9th Cir.

1990). "Federal courts have broad inherent powers 'to

manage their own affairs so as to achieve the orderly

and expeditious disposition of cases." Sherman _v.

United States, 801 F.2d 1133, 1135 (9th Cir. 1986)

(quoting Link v. Wabash Railroad, 370 U.S. 626

(1962)). "Moreover, under Rule 41, the district court

has authority to order a party to take actions that aid

the speedy resolution of a case, and to dismiss a party if

it fails to comply with the court order." Sherman, 801

F.2d at 1134 (citation omitted). age AlEiFerdik v.

Bonzelet, 963 F.2d 1258 (9th Cir.), geg, denied, 506

U.S. 915 (1992). Accordingly, the Court will provide

Plaintiff the following instructions.

In filing his Fifth Amended Complaint, Plaintiff

is limited to the amendment of his claims as designated

in the Order, above. Plaintiff may allege no new counts.

Plaintiff may add no new claims to existing counts.

Plaintiff may add no new Defendants. Plaintiff will

refer to each claim by the number designated by the

Court in this Order.

Plaintiff has demonstrated that he is unable to

incorporate facts and allegations by reference and still

comply with Rule 8's stricture that he make short,

plain statements of his claims demonstrating that he is

entitled to relief. For instance, in Count Thirty-Eight

Plaintiff incorporates paragraphs from Count Thirty-

Seven, which are no more than instructions to

incorporate other paragraphs by reference. The result

is confusing and nearly unreadable. Clearly, this

method of alleging a claim does not comply with Rule 8.

Further, Plaintiffs attempts to characterize his

allegations in the first four pages of the Addendum are

unnecessary and irrelevant to his claims. The Court

refers to such sections as "What is Being Challenged,"

"Concealed Weapons," and the three-page narrative of

events and personal opinions. relating Plaintiffs

contacts with the Maricopa County Attorney's Office.

Any facts required to support his claims should be

presented in the context of those claims in short, plain

statements. The amount of detail provided by Plaintiff

may be appropriate in the context of a statement of

facts in support of a response to a motion for summary

judgment but has no place in a complaint which

aiready substantially exceeds the page limit set by

Local Rules. The Plaintiff should also note that this

Order directs him to file a Fifth Amended Complaint.

Until Plaintiff complies with this Order, further

motions practice is inappropriate.

Plaintiff is warned that if he fails to timely

comply with every provision of this Order, or any order

of the Court entered in this matter, the action will be

dismissed pursuant to Rule 41(b) of the Federal Rules

of Civil Procedure. See Ferdik, supra.

IT IS THEREFORE ORDERED:

(1) That the Fourth Amended Complaint is

dismissed with leave to amend. Plaintiff shall have 30

days from the date this Order is filed to amend his

Fourth Amended Complaint in order to state specific

allegations against proper Defendant(s), to name as

Defendant(s) the individual(s) who participated in the

activities alleged in his Fourth Amended Complaint,

and to state what injury, if any, he has suffered as a

result of the activities of the Defendant(s), all in

compliance with Rule 8, Fed.R.Civ.P. The Fifth

Amended Complaint must be retyped or rewritten in its

entirety and may not incorporate any part of the

original or Amended Complaints by reference. Any

Fifth Amended Complaint submitted by Plaintiff

should be clearly designated as such on the face of the

document. The Fifth Amended Complaint will be

Plaintiff's final opportunity to amend;

(2) That at all times during the pendency of this

action, Plaintiff shall immediately advise the C

This text is long and has been trimmed here. Open the source document for the complete record.

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.