Opinion
No. CV 21-0904 PHX CDB
06-03-2021
Samantha Romel Walker, Richard J. Johnson, Plaintiffs, v. Renee Walker, Christian Vaughn, Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE STEPHEN M. McNAMEE:
Plaintiffs, who proceed pro se, bring this civil rights matter pursuant to 42 U.S.C. § 1983. The Complaint was docketed May 20, 2021, in tandem with a motion seeking leave to proceed without prepayment of costs and fees. (ECF No. 1; ECF No. 2). Plaintiffs are residents of Texas and the Complaint names as Defendants Renee Walker, a resident of Arizona, and Christian Vaughn, a resident of Texas, who Plaintiffs allege is an employee of the Texas Department of Family and Protective Services' division of Child Protective Services. To date Plaintiffs have not consented to the exercise of magistrate judge jurisdiction over this matter, no summons has been issued, and Defendants have not been served.
Before the Court is Plaintiffs' motion to proceed without prepayment of costs and fees. (ECF No. 2). Because it appears Plaintiffs' motion to proceed in forma pauperis is arguable, and granting the motion would require the Complaint to be screened, and because upon screening it appears the Court is without jurisdiction to hear Plaintiffs' claims for relief, a decision on the motion to proceed in forma pauperis is dispositive. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b), and Rule 72.2(a)(2) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona.
Before granting a plaintiff leave to proceed in forma pauperis the Court must decide whether the plaintiff is truly unable to pay the filing fees. 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000). The application to proceed in forma pauperis filed in this matter is signed only by Plaintiff Walker. (ECF No. 2). Plaintiff Walker avers she has no income and that she has not been employed for the last two years. (Id.). The application at ECF No. 2 also indicates Plaintiff does not have any assets, such as a motor vehicle, and that she does not pay rent, a mortgage, or for utilities. A "Statement of Inability to Afford Payment of Court Costs or an Appeal Bond in Justice Court," filed by Plaintiff in Cause Number 2129999 in Walker County, Texas on January 22, 2021, is attached to the Complaint in this matter. (ECF No. 1 at 11). In that document Plaintiff Walker indicates she receives food stamps, Supplemental Security Income benefits, Public Housing benefits, WIC (Supplemental Nutrition Program for Women, Infants, and Children) benefits, and TANF (Temporary Assistance for Needy Families) benefits, based on her indigency. (Id.). In the application to proceed in forma pauperis in this matter Plaintiff Walker avers she does not receive any form of disability, unemployment, or public-assistance benefits, in direct contrast to her statements in the document filed in the Walker County court.
When the totality of the circumstances are weighed against an in forma pauperis applicant's statement of poverty, and the result suggests incongruity, the Court may go beyond the mere statement of income and inquire into additional relevant matters including the applicant's ability to pay the requisite filing fee. See, e.g., Dreyer v. Jalet, 349 F. Supp. 452, 459-60 (D. Tex. 1972). Because there is incongruity between the pending application at ECF No. 2 and the statement filed in the Walker County court (and attached to the complaint herein), it is not apparent that Plaintiff Walker is clearly unable to pay the filing fee in this matter. Additionally, no demonstration of Plaintiff Johnson's indigency appears in the record.
I. Governing Law
Generally, parties who file an action in a federal district court must pay a filing fee. See 28 U.S.C. § 1914(a). However, 28 U.S.C. § 1915 permits indigent plaintiffs to apply for a fee waiver. Proceeding in forma pauperis in a civil case "is a privilege, not a right—fundamental or otherwise." White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). Granting or denying this privilege is a matter within the Court's discretion. See, e.g., Denton v. Hernandez, 504 U.S. 25, 33 (1992); Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998). Such a motion may be granted when the plaintiff has both established their indigency and docketed a complaint which presents at least one nonfrivolous claim for relief. See, e.g., Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 756-57 (7th Cir. 1988). In civil actions leave to proceed in forma pauperis "should be allowed only in exceptional circumstances." Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963) (internal quotations omitted).
The Court must dismiss a complaint filed in tandem with a petition to proceed in forma pauperis if it is satisfied that the complaint "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). Before dismissing the complaint, the Court must conclude that it lacks an arguable basis either in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325-27 (1989).
. . . Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit, see, e.g., Williams v. Goldsmith, 701 F.2d 603 (7th Cir. 1983), and claims of infringement of a legal interest which clearly does not exist . . .Id. at 327.
Section 1915(e) replaced former section 1915(d), which provided that a district court "may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." 28 U.S.C. § 1915(d) (1994). The Supreme Court held in Neitzke v. Williams, 490 U.S. 319 [] (1989), that section 1915(d) did not authorize district courts to dismiss, sua sponte, a complaint for failure to state a claim, and it is clear that Congress intended that the PLRA overrule that decision. It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998).Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000).
Accordingly, the Court may dismiss a complaint pursuant to § 1915(e)(2)(B)(ii) if the claims are frivolous. See Denton v. Hernandez, 504 U.S. 25, 31 (1992); Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). Under the liberal rules applicable to pro se complaints, an action is frivolous if the plaintiff cannot make a rational argument on the law and facts in support of their claim. See Lopez v. Department of Health Servs., 939 F.2d 881, 882 (9th Cir. 1991); Van Sickle v. Holloway, 791 F.2d 1431, 1434 (10th Cir. 1988). Although pro se pleadings are liberally construed, conclusory and vague allegations are insufficient to supply the basis of a claim for relief. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Additionally, affording a civil rights complaint a liberal interpretation does not require the Court to supply essential elements of the claim that were not initially pled. Id. See also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011). Even pro se pleadings must contain a minimum level of factual support and a plaintiff should not be allowed to proceed in forma pauperis if the Court must invent scenarios not evident from the face of the complaint. See Richmond v. Cagle, 920 F. Supp. 955, 957 (E.D. Wis. 1996), cited in Staples v. Arizona Dep't of Econ. Sec., 2007 WL 864742, at *1 (D. Ariz. Mar. 20, 2007). To survive screening, "[t]he plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (internal quotations omitted).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint containing the factual elements of a cause of action but scattering them haphazardly throughout the complaint may be dismissed for failure to satisfy Rule 8. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); Amina v. WMC Fin. Co., 329 F. Supp. 3d 1141, 1161 & n.15 (D. Haw. 2018), aff'd, 812 F. App'x 509 (9th Cir. 2020). All allegations of a claim are to be set forth in numbered paragraphs that should be limited to a single set of circumstances. See Fed. R. Civ. P. 10(a). Failure to set forth claims in such a manner places the onus on the Court to decipher which facts, if any, support which claims, as well as determining whether the plaintiff is entitled to the relief sought. See Carrigan v. California State Legislature, 263 F.2d 560, 566 (9th Cir. 1959); Haynes v. Anderson & Strudwick, Inc., 508 F. Supp. 1303, 1307 n.1 (D. Va. 1981); Oneal v. Flint, 2017 WL 4011129, at *2 (D. Ariz. July 28, 2017), report and recommendation adopted, 2017 WL 3978661 (D. Ariz. Sept. 11, 2017). Federal judges do not have "license . . . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Inv. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).
To state a cognizable claim for relief pursuant to § 1983, the plaintiff must show that they suffered a violation of rights protected by the Constitution; that the violation was caused by a person acting under color of state law; and damages. See Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991); Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Generally, private parties do not act under color of state law. See 42 U.S.C. § 12131 (defining a "public entity" as "any State or local government," "any department, agency, special purpose district, or other instrumentality of a State or States or local government"); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).
II. Plaintiff's Complaint
The Complaint asserts:
On or about January, 2021, Renee Walker, with the cooperation and approval of Christian Vaughn acting in concert without court approval. Without due process of law. Removed [M.W.] (a child), and [S.W.] (a child), both 8 year old twins, sons of Samantha Walker. The defendants took these children out of State of Texas to live in Arizona - effectively stopping petitioners from [exercising] court mandated visiting rights. Petitioners reside in East Texas. The children had been residing in The Woodlands/Huntsville, Texas, where access to them had been [available]. The move to Arizona stopped all visitation.
The [defendant] Renee Walker's move to Arizona is done also to avoid and avade [sic] Texas courts.
Cause #2129999 Walker County District Court, styled Samantha R. Walker vs. Renee Walker, Huntsville Texas.(ECF No. 1 at 4-5). Plaintiffs also assert:
This is a suit for custody of the children.
Defendant Renee Walker [absconded] with children to avoid this suit.
Comes now pro se plaintiffs . . . and files this civil rights lawsuit against the [herein] named defendants. For violation of the plaintiffs' rights to due process under both the 5th and the 14th Amendments to the U.S. Constitution these defendants denied the plaintiff the right to access of court.(ECF No. 1 at 8). Plaintiffs further allege:
During termination of parental rights.
Plaintiff was not present at hearing.
Nor a representative for the plaintiff, at this important hearing.
That took away all of the plaintiff's parental rights.
This violated petitioners [sic] access to court, because the plaintiffs were not [allowed] to be present at said hearing.
Then Renee Walker, acting in concert with CPS Officer Christene Vaughn of the Huntsville CPS, with the tacit approval of the CPS office of Huntsville, moved the plaintiffs' children to the State of Arizona. Effectively terminating all visiting rights held by plaintiff.(ECF No. 1 at 9).
No court action was held to avice [sic], allow, or condone this [arbitrary], capricious, and callous act by the Defendants.
[Further] violating the due process rights of the plaintiffs.
Public records indicate that on January 22, 2021, Plaintiffs filed a complaint against Defendants and the Texas Department of Family and Protective Services' division of Child Protective Services in the 278th District Court, Walker County, Texas, assigned Case Number 2129999. The defendants in that matter have been served. The public docket indicates the case is still open. See http://odysseypa.tylerhost.net/Walker/CaseDetail.aspx, last visited June 3, 2021.
With regard to their injury, Plaintiffs contend: "Due to the extreme distance between Texas and Arizona Plaintiffs have not been able to visit children. Due process rights are violated by this move w/o any hearing." (ECF No. 1 at 6). Plaintiffs' prayer for relief asks the Court to order "Renee Walker to move the children back to Texas within 100 miles of Palestine, Texas;" "or release children to a Texas family;" "or release children to Plaintiffs." (Id.). Plaintiffs also seek "preliminary and injun[c]tive relief, preventing Defendan[t] from moving Plaintiffs [sic] children out of state," and for "preliminary and injunctive relief, declaring trial that [stripped] away Plaintiff's [parental] rights without Plaintiff present, violating due process, unconstitutional." (ECF No. 1 at 9).
III. Analysis
The burden of establishing the Court's jurisdiction over a particular claim is on the party asserting jurisdiction. E.g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-183 (1936). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stevedoring Servs. of Am., Inc. v. Eggert, 953 F.2d 552, 554 (9th Cir. 1992), quoting Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). "A [district] court has an obligation to inquire sua sponte into its subject matter jurisdiction, and to proceed no further if such jurisdiction is wanting." Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th Cir. 2003).
Defendant Walker is not a defendant amenable to suit under §1983. Section 1983 provides a cause of action against "a person" who, under "color" of state law or authority, deprives the plaintiff of a constitutionally-protected right. The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights, and to provide relief to victims if such deterrence fails. E.g., Wyatt v. Cole, 504 U.S. 158, 161 (1992); McDade v. West, 223 F.3d 1135, 1139-40 (9th Cir. 2000). Nothing in the Complaint supports the conclusion that Defendant Walker was or is employed by any state authority, or that Defendant Walker was or is a "state actor."
Furthermore, nothing in the Complaint supports the conclusion that Plaintiff Johnson's federal constitutional rights were violated by Defendant Walker or Defendant Vaughn. Broadly construing Plaintiffs' Complaint, it does not allege that Plaintiff Johnson is the father of the minor children, or that Plaintiff Johnson has or had any adjudicated rights to custody of or visitation with the minor children, although the Complaint affirmatively alleges that Plaintiff Walker's parental rights have been both terminated and violated. Rights that are protected under § 1983 are personal to the injured party and, therefore, a plaintiff may not be awarded relief based on the violation of another individual's federal constitutional rights. The "case or controversy" requirement of Article III of the United States Constitution limits the federal courts' jurisdiction by requiring that plaintiffs have "standing" to bring the lawsuit. See, e.g., Alaska Right to Life Pol. Action Comm. v. Feldman, 504 F.3d 840, 848-49 (9th Cir. 2007). In order to have standing, a party "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975). And, "[a]part from the jurisdictional requirement" of standing to bring suit, the federal courts have "developed a complementary rule of self-restraint . . . (not always clearly distinguished from the constitutional limitation) which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others." Barrows v. Jackson, 346 U.S. 249, 255 (1953). See also Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).
Additionally, the Court does not have jurisdiction over Plaintiff Walker's claims for relief against Defendant Vaughn regarding the custody of the minor children, visitation rights with regard to the minor children, or any termination of Plaintiff Walker's parental rights. Jurisdiction over the § 1983 claims against Defendant Vaughn, who is purportedly an employee of the State of Texas' office of Child Protective Services, is barred by the Rooker-Feldman doctrine. See Ismail v. County of Orange, 693 F. App'x 507, 512 (9th Cir. 2017) (holding the Rooker-Feldman doctrine barred the plaintiff's § 1983 claims against county social workers for constitutional violations relating to submitting false reports to the juvenile court that terminated the plaintiff's parental rights); Safouane v. Fleck, 226 F. App'x 753, 758 (9th Cir. 2007) (affirming dismissal under the Rooker-Feldman doctrine, based on the federal courts' lack jurisdiction to determine the validity of state court parental rights proceedings).
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).
The Rooker-Feldman doctrine prohibits a federal district court from exercising subject matter jurisdiction over a claim when the claim is a de facto appeal from a state court judgment. See, e.g., Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013); Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003). A federal action constitutes a de facto appeal where the claim(s) raised in the federal court are "inextricably intertwined" with a state court judgment. Cooper v. Ramos, 704 F.3d 772, 778-79 (9th Cir. 2012). A claim is "inextricably intertwined" with a state court judgment "if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it," i.e. "[w]here federal relief can only be predicated upon a conviction that the state court was wrong." Id. at 779 (internal quotations omitted). See also Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003) (providing that claims are inextricably intertwined with the state court's decision if the federal court's adjudication of the claims would "undercut" the state court's decision). Whether the federal plaintiff's claims are independent of, or intertwined with, the state court's judgment is determined by looking to the relief sought by the plaintiff. See Bianchi, 334 F.3d at 900. If the relief sought would necessarily undo a state-court judgment, then the claim is not independent and Rooker-Feldman bars the federal court from exercising subject matter jurisdiction over the claims. Id. And, notably in this matter, under the Rooker-Feldman doctrine, federal courts lack jurisdiction to evaluate the propriety of state-court decisions regarding the validity or extent of parental rights. See, e.g., Safouane, 226 F. App'x at 758; Stratton v. Mecklenburg Cty. Dep't of Soc. Servs., 52 F. App'x 278, 271 (4th Cir. 2013).
The relief sought by Plaintiffs is, in effect, to void any decision of the Texas state courts terminating Plaintiff Walker's parental rights, awarding physical custody of the minor children to Defendant Walker, and/or with regard to allowing Defendant Walker to remove the children from Texas notwithstanding any visitation rights granted to Plaintiff Walker. Plaintiff Walker's interest in the issue (and therefore standing to assert her claims) is directly derived from and inextricably intertwined with the Texas courts' adjudication of her parental rights or rights to visitation with the minor children. Even if Plaintiffs are not explicitly seeking to challenge the state courts' custody and parental rights decision(s), the solely declaratory and injunctive relief Plaintiffs seek constitutes a de facto appeal of those state-court decisions. Granting the relief Plaintiffs seek necessarily involves overturning any state-court order terminating or limiting Plaintiff Walker's parental rights, and/or awarding sole physical custody of the minor children to Defendant Walker, and/or any decision of the state courts allowing Defendant Walker to remove the children from the State of Texas. The Rooker-Feldman doctrine forbids federal courts from taking such action.
Additionally, it is at least probable that Defendant Vaughn, acting in their capacity as an employee of a state child protective services entity, is entitled to absolute or qualified immunity from suit pursuant to § 1983 regarding any decision limiting, enforcing, or terminating Plaintiff Walker's parental rights. See Stern v. Ahearn, 908 F.2d 1, 6 (5th Cir. 1990). Absolute immunity attaches to prosecutors, or state officers standing in their shoes, for performing the traditional function of prosecutors, such as "initiating a prosecution and . . . presenting the State's case," including in a child custody matter. Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003). See also Safouane, 226 F. App'x at 762. "Absolute immunity is extended to state officials, such as social workers, when they are performing quasi-prosecutorial and quasi-judicial functions." Tamas v. Department of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir. 2010). To the extent Defendant Vaughn was acting to execute or enforce a court order, they are also potentially entitled to absolute quasi-judicial immunity. See Coverdell v. Department of Soc. & Health Serv., 834 F.2d 758, 765 (9th Cir. 1987), compare Tamas, 630 F.3d at 842 (". . . social workers are not afforded absolute immunity for their investigatory conduct, discretionary decisions or recommendations," in which instance the social worker might be entitled to qualified immunity). However, "offering adverse judicial testimony at a child-custody hearing does not implicate due process concerns and, further, it constitutes witness testimony that is absolutely immune from section 1983 liability." Stern, 908 F.2d at 6.
Furthermore, in the alternative, to the extent that custody of the minor children, visitation rights with the minor children, and/or the termination of Plaintiff Walker's parental rights are the subject of the litigation initiated by Plaintiffs in the state courts, i.e., in the Walker County matter, the Court's jurisdiction over these issues is barred by the doctrine of Younger v. Harris, 401 U.S. 37 (1971). "Absent extraordinary circumstances, Younger abstention is required if the state proceedings are (1) ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims." San Remo Hotel v. San Francisco, 145 F.3d 1095, 1103 (9th Cir. 1998), citing Hirsh v. Justices of the Sup. Ct. of Cal., 67 F.3d 708, 712 (9th Cir. 1995). When these criteria are met, "a district court must dismiss the federal action . . . [and] there is no discretion to grant injunctive relief." Juidice v. Vail, 430 U.S. 327, 337 (1977).
The Supreme Court and the Ninth Circuit Court of Appeals have specifically held that federal court claims related to ongoing custody proceedings in state court are properly dismissed pursuant to the Younger abstention doctrine. See Moore v. Sims, 442 U.S. 415, 423 (1979) (holding Younger abstention appropriate in the context of a state child removal proceeding); Safouane, 226 F. App'x at 758-59 ("There does not seem to be a genuine dispute between the parties that at the time this action was filed, proceedings regarding two of the minor children were pending in the state court . . . or that the [plaintiffs] had the opportunity to raise their claims in those proceedings. The claims seeking injunctive or declaratory relief related to those proceedings were subject to dismissal pursuant to Younger abstention."). See also H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 611-12 (9th Cir. 2000). In Koppel, the mother filed an action in federal court seeking, inter alia, the reversal of a state court judge's rulings transferring custody to the father. Applying the Younger doctrine, the Ninth Circuit Court of Appeals concluded the child custody matter was ongoing, and also found family relations are traditionally state matters that implicate important state interests, and additionally determined the plaintiff had an adequate opportunity to litigate her claims in the state court. Id. at 613. Accordingly, the Ninth Circuit panel concluded that "[t]his is precisely the type of matter suited to Younger abstention." Id. Accordingly, to the extent that the custody dispute in the Texas state court is ongoing, this case must be dismissed pursuant to Younger.
Additionally, to the extent Plaintiffs assert § 1983 claims against Defendant Vaughn which are not barred by the Rooker-Feldman doctrine or subject to Younger abstention, the appropriate venue for resolving those claims would be in the United States District Court for the Southern District of Texas, rather than the District of Arizona.
IV. Conclusion
Defendant Walker is not an entity amenable to suit under § 1983 and Plaintiff Johnson does not have standing to bring a § 1983 claim against either Defendant. The Court is without subject matter jurisdiction over Plaintiffs' claims because, to the extent Plaintiffs challenge the execution of decisions rendered by the Texas state courts, Plaintiffs' § 1983 claims against Defendant Vaughn are barred by the Rooker-Feldman doctrine, and to the extent Plaintiffs' lawsuit in the Walker County court matter seeks the same relief sought in this matter, the Court must abstain from hearing the claims pursuant to Younger.
Accordingly,
IT IS RECOMMENDED that Plaintiffs' Complaint and this case be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that Plaintiffs' motion for leave to proceed without prepayment of costs and fees (ECF No. 2) be denied as moot.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Dated this 3rd day of June, 2021.
/s/_________
Camille D. Bibles
United States Magistrate Judge