Jenkins v. Bolton, CV 11-2046-PHX-RCB (DKD)

Decision Date08 December 2011
Docket NumberNo. CV 11-2046-PHX-RCB (DKD),CV 11-2046-PHX-RCB (DKD)
PartiesJunies A. Jenkins, Plaintiff, v. Susan R. Bolton, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

Plaintiff Junies A. Jenkins, an inmate in the Arizona Department of Corrections (ADC), filed a complaint in Maricopa County Superior Court, matter No. CV2011-014660, alleging claims pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and 42 U.S.C. §§ 1983 and 1985.1 (Doc. 1.) On October 20, 2011, the United States removed the Complaint to federal court on behalf of U.S. District Court Judges Bolton, Teilborg, Bury, and Rosenblatt, who were each named as Defendants. (Id.) Defendants Bolton, Teilborg, Bury, and Rosenblatt filed an Answer. (Doc. 5.) They have also filed a motion to dismiss. (Doc. 12.) Plaintiff has filed several notices. (Doc. 6-11.) The Courtwill dismiss the Complaint and this action without leave to amend and deny the motion to dismiss as moot.

I. Removal to Federal Court was Proper

A defendant may remove any civil action brought in state court over which the federal court would have original jurisdiction. 28 U.S.C. §1441(a). That is, a civil action that could have originally been brought in federal court may be removed from state to federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal court has original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

The Complaint in this case facially supports that subject matter jurisdiction exists in federal court because Plaintiff alleges violations of his federal constitutional rights against federal employees. 28 U.S.C. §§ 1441, 1442. Further, Defendants removed the action from state court within 30 days after the case became removable. 28 U.S.C. § 1446(b). The Court concludes that this case was properly removed.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). In this case, the Court concludes that deficiencies in the Complaint can not be cured by the allegation of other facts. Accordingly, the Complaint and this action will be dismissed without leave to amend.

III. Complaint

The gist of Plaintiff's Complaint in this case is that he has been denied "a fair adjudication of the legality of [his] conviction and sentence" and that Defendants Bolton, Teilborg, Bury, and Rosenblatt conspired to interfere with Plaintiff's ability to obtain relief from his conviction and sentence. (Doc. 1, Complaint at 11.) Plaintiff sues Bolton, Teilborg, Bury and Rosenblatt as well as Catherine Bohland, an Assistant Arizona Attorney General who represented two defendants in one of Plaintiff's prior cases, Jenkins v. Clemenshaw, No.CV04-2771-PHX-SRB.


Plaintiff was convicted by a jury of child molestation and attempted child molestation in Pima County Superior Court in 1987 and was sentenced to 28 years in prison, case# CR0019898. See State v. Jenkins, No. 2 CA-CR 2010-0119-PR, 2010 WL 2803623, at *1 (Ariz. Ct. App. July 16, 2010). His conviction was affirmed on direct appeal in 1988. Id. (citing State v. Jenkins, No. 2 CA-CR 87-0605 (Ariz. Ct. App. Nov. 10, 1988)). Plaintiff has filed numerous state court challenges to his conviction and sentence, including complaints of judicial misconduct. See id.; see also State v. Jenkins, No. 2 CA-CR 2009-0200-PR, 2009 WL 4345271, at *1 (Ariz. Ct. App. Dec. 1, 2009) (citing cases).

Except as otherwise indicated, Plaintiff alleges the following in his Complaint: he submitted his first petition for a writ of habeas corpus in 1994, which was assigned to District Judge Bilby, Jenkins v. Crist, No. CV93-0294-TUC-RMB. On March 3, 1994, Judge Bilby dismissed the petition, apparently because it contained exhausted and unexhausted claims, i.e., it was a mixed petition. (Doc. 1, Complaint at 17.) Plaintiff did not appeal. (Id.) Rather, Plaintiff filed a civil rights case, Jenkins v. Veliz, No. CV95-0142-TUC-RMB, in which he raised claims against Deputy Pima County Attorney Joelyn Marlowe, Pima County Superior Court Judge Gilbert Veliz, and others involved in his state criminal proceedings. On July 17, 1995, Judge Bilby dismissed the action but granted Plaintiff's motion to file an amended petition as an original petition in a new habeas case. CV95-0142, doc. 17. The amended petition was filed as an original petition in Jenkins v. Crist, No. CV95-0459-TUC-RHW.2 After amending the petition in that case, an answer was ordered and, on August 17,1999, Judge Whaley denied habeas relief with prejudice.3 CV95-0459, doc. 44. Plaintiff appealed but was denied a certificate of appealability by Judge Whaley and the Ninth Circuit. Id., doc. 46, 47.

While Plaintiff's habeas case, CV95-0459, was pending, Plaintiff commenced a new civil rights cases, Jenkins v. Veliz, No. CV95-0711-TUC-RMB, in which Plaintiff sued Pima County Superior Court Judge Veliz, who apparently presided at Plaintiff's criminal trial.4 On December 18, 1995, Judge Bilby dismissed the case pursuant to Heck v. Humphrey and judgment was entered.5 See CV95-0711, doc. 3, 4. Plaintiff did not appeal. Id.

In 2004, Plaintiff commenced a civil rights action against prison officials. See Jenkins v. Clemenshaw, No. CV04-2771-PHX-SRB. Service of an amended complaint, and response to Plaintiff's claim that prison officials had failed to protect him from an assault by other inmates, was ordered on various defendants. See id., doc. 23. Two of those defendants were represented by Arizona Assistant Attorney General Catherine Bohland. Id. Judge Bolton denied a motion to dismiss filed by Bohland on behalf of her clients, id., doc. 48, but on January 26, 2007, Judge Bolton granted defendants' motion for summary judgment. Id., doc.95. Paintiff appealed. Id., doc. 96. Judge Bolton certified that the appeal was not taken in good faith because Plaintiff had failed to present any evidence of deliberate indifference to his safety in opposition to summary judgment. Id., doc. 99. On review, the Ninth Circuit agreed that Plaintiff's appeal was not taken in good faith and that he was not entitled to proceed in forma pauperis on appeal, but granted Plaintiff time to pay the filing fee. Id., doc. 10. Plaintiff's appeal was dismissed for failure to prosecute. Id., doc. 103.

In 2006, Plaintiff commenced another civil rights action against Deputy Pima County Attorney Marlowe, Judge Veliz, criminal defense counsel Ralph Malanga, and others involved in his criminal case. See Jenkins v. Marlowe, No. CV06-0160-TUC-DCB. On October 17, 2006, Judge Bury dismissed Plaintiff's amended complaint for failure to state a legally cognizable claim for relief without leave to amend. Id., doc. 5. Plaintiff filed motions for reconsideration, which were denied. Id., doc. 8-11, 13. Plaintiff timely appealed the denial of reconsideration. Id., doc. 14, 17. The Ninth Circuit affirmed the denial of reconsideration. Id., doc. 20.

In the current case, Plaintiff seeks relief from the judgment entered in CV95-0459 denying his petition for habeas corpus. He also seeks relief from the judgments entered in CV95-0711, CV06-0160, CV09-0301, and CV04-2771. With respect to CV06-0160 and CV09-301, Plaintiff asserts that Judge Bury denied relief due to personal bias, prejudice, and discrimination based on Plaintiff's "alleged sexual preference." (Doc. 1, Complaint at 23-24, 25.) Plaintiff makes similar assertions against Judge Bolton in connection with CV04-2771.6 (Id. at 25-29.)

Plaintiff also purports to seek to consolidate six of his closed cases: Jenkins v.Bohland, No....

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