Martinez v. Maricopa County Sheriff's Office et al

Filing 4

ORDER (Service Packet) that Maricopa County Sheriff's Office is dismissed without prejudice. The Clerk of Court shall send Plaintiff a service packet for dft Joseph Arpaio. This matter is referred to Magistrate Judge Joseph Arpaio. Service Packet due by 11/30/2005.. Signed by Judge David G Campbell on 11/9/05. (TLJ, )

Martinez v. Maricopa County Sheriff's Office et al

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JDN WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Gilbert M art inez , vs. Plaintiff, ) ) ) ) ) ) ) ) ) No. CV 05-3500-PHX-DGC (DKD) O RDER

M aricop a County Sheriff's Office, et al., Defendants.

T his is one of more than one thousand civil rights actions filed since September 2004 by M aricop a County Jail inmates.1 Plaintiff is an inmate at the Low e r Buckeye Jail in Phoenix, Arizona. The Court will require an answer to the Complaint. A. Appl i cati on to Proceed In Forma Pauperis & Filing Fee Plaint iff's request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a). Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is required to pay the s t a t u t o r y filing fee of $250.00 for this action. No initial partial filing fee w i l l be assessed by this Order. 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated for monthly payments of 20 percent of the preceding mont h's income credited to Plaintiff's trust account. The Court will direct the appropriate

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M any inmates apparently believe that they will receive an immediate payout from a fund established in Hart v. Hill, No. CV 77-0479-PHX-EHC (M S) (D. Ariz.). No such fund exist s. The inmat e s in Hart asked for injunctive relief and not monetary damages. The C o u r t at this time expresses no opinion whether Plaintiff's lawsuit may result in an award of damages.
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Filed 11/10/2005

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agency to collect t h e s e monthly payments, which will be forwarded to the Clerk of Court each time the amount in P l a i n t i ff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). Plaint iff should take notice that if he is released before the filing fee is paid in full, he must pay the remaining unp aid amount of the filing fee within 120 days of the date of his release. If Plaintiff fails to pay the remainder of the filing fee within 120 days of the date of his release, the action will be dismissed, unless Plaint i ff shows good cause, in writing, why he is unable to pay the remainder of the filing fee. B. S tatutory S cre e ni ng of Prisoner Complaints T he 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 Plaint iff has raised claims t h a t 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). C. Claims and/or Parties to be S e rve d and/or Dismissed 1. Service

In his Complaint Plaintiff alleges that the jail is severely overcrow ded, and the living condit ions are unsanitary. These allegations adequately state a claim, and the Court will

require Defendant Arpaio to answer to the Complaint. 2. Dismissal

a. Improper Defendant T h e M a ricop a County Sheriff's Office is not a proper Defendant. In Arizona, t h e r e s p o nsibilit y of operating jails and caring for prisoners is placed by law upon the sheriff. See A.R.S. § 11-441(A)(5); A.R.S. § 31-101. A s h e r i f f 's office is simply an administrative c r e a t ion of the county sheriff to allow him to carry out his statutory duties, and not a " p erson" amenable to suit pursuant to § 1983. Accordingly, the M aricop a County Sheriff's Office will be dismissed from this action as an improper Defendant. -2Document 4 Filed 11/10/2005

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b. Retaliation To state a valid constitutional claim, a p l a int iff must allege that he suffered specific injury as a result of the specific conduct of a defendant, and s h ow an affirmative link bet ween the injury and the conduct of the defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 3 7 7 (1976). For a person to liable in his official capacity, Plaintiff must allege that he act e d as a result of a policy, practice, or cus t o m . See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). A supervisor, in his individual cap a c i t y , "is only liable for

const it ut ional violations of his subordinates if the supervisor participated in or directed t he violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). " A plaintiff must allege facts, not simply conclusions, t hat show that an individual was personally involved in t h e deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). In Count II, Plaintiff alleges that a "detention officer" threatened and intimidated Plaint iff and other inmates after they requested grievance forms. However, Plaintiff does

no t es t ablish that the action of the detention officer was the result of a policy which Defendant Arpaio enacted and enforced. Furt h e r , Plaintiff does not demonstrate that

Defendant Arpaio was directly involved w i t h, or even aware of, the alleged constitutional violat ion. Because Plaintiff only names Defendant Arpaio, this Count will be dis m issed

wit hout prejudice. D. Rul e 41 Cautionary Notice Plaint iff should take notice that if he fails to timely comply wit h every provision of t his Order, or any order entered in this matter, this action w i l l be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the Court). IT IS THEREFORE ORDERED that: (1) Plaintiff's Application to Proceed In Forma Pauperis is grant e d . Plaintiff is

obligat ed to pay the statutory filing fee of $250.00 for this action. -3Document 4 Filed 11/10/2005

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(2) The M aricop a County Sheriff or his designee shall collect the filing fee from Plaint iff's trust account by collect i n g monthly payments in an amount equal to 20 percent of the preceding month's income credited to Plaintiff's trust account and forwarding the p ay ment s to the Clerk of the Court each time the amount in the account exceeds $10.00 in accordance with 28 U.S.C. § 1915(b)(2). name and number assigned to this action. (3) The following Defendant s are dismissed without prejudice: M aricop a County Sheriff's Office. (4) The Clerk of Court shall send Plaint i f f a service packet including the Complaint, t his Order, and both summons and request for waiver forms for D e f e n dant Joseph Arpaio. (5) Plaintiff shall complete and return the service packet to the Clerk of Court within 20 days of t he date of filing of this Order. The United States M arshal will not provide The payments shall be clearly identified by the

service of process if Plaintiff fails to comply with this Order. (6) If Plaintiff does not either obtain a waiver of service of the summons or complete se r v i c e of the Summons and Complaint on each Defendant within 120 days of the filing of t he complaint or within 60 days of the filing of this Order, whichever is lat e r , the action may be dismissed as to each Defendant not served pursuant t o Rule 4(m) of the Federal Rules of Civil Procedure and Rule 16.2(b)(2)(B)(i) of the Local Rules of Civil Procedure. (7) The United States M arshal shall retain the Summons , a copy of the Complaint, and a copy of this Order for future use. (8) The United States M arsh a l s h a l l notify Defendant of the commencement of this act ion and request waiver of service of the summons pursuant to Rule 4(d) of t h e F e d e ral Rules of Civil Procedure. The notice to Defendant shall include a copy of this Order. The M arshal shall file waivers of service of the summons or reques t s for waivers that were ret urned as undeliverable as soon as they are received. If a waiver of service of summons is not returned by a Defendant within thirty days from the date the request for waiver was sent by the M arshal, the M arshal shall:

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(a)

Personally serve copies of the Summons, Complaint, and this Order upon

t he Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; ( b) Within 10 days after personal service is effected, file the return of s e r v i c e for the Defendant, along with evidence of the at t e m p t t o secure a waiver of service of the s u m m o n s and of the costs subsequently incurred in effecting service upon t he Defendant. The cos t s of service shall be enumerated on the return of service

form (USM -285) and s h a l l include the costs incurred by the M arshal for p h ot ocop y ing additional copies of the Summons, Complaint, or this Order and for p rep aring new process receipt and return forms (USM -285), if required. Costs of

service will be taxed against the personally served defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil P r ocedure, unless otherwise ordered by t he Court. (9) A Defendant who agrees to waive service of the S ummons and Complaint shall re turn the signed waiver forms to the United S tate s Marshal, not the Plaintiff. (10) Defendant shall answer the Complaint or otherwise res p o n d by appropriate

mot ion within t h e t i m e provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (11) Any answer or responsive pleading s h a ll state the specific Defendant(s) by

nam e on w h o s e behalf it is filed. The Court may strike any answer, responsive pleading, or other motion or paper that does not identify the specific Defendant(s) by name on whose behalf it is filed. (12) Plaintiff shall serve upon Defendant, or if appearance has been entered by

counsel, upon couns e l , a copy of every further pleading or other document submitted for con s i d e r at ion by the Court. Plaintiff shall include with the original document and copy, to be filed w i t h t h e Clerk of the Court, a certificate stating the date a true and correct copy of t he pleading or document was mailed to Defendant or counsel. Any paper received by a

Dist rict Court Judge or M agist rat e Judge which has not been filed with the Clerk of Court may be disregarded by the Court. -5Document 4 Filed 11/10/2005

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(13) At all t i m e s during the pendency of this action, Plaintiff shall immediately advise t he Court and the United States M arsh a l of any change of address and its effective date. Su c h notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall cont ain only information pertaining to the change of address and its effective date. Plaint iff shall serve a copy of the notice on all opposing parties. The notice shall not include any motions for any other relief. Failure to file a Notice of Change of Address may result in the dismissal of the action for failure to pros e c u t e p u r s u ant to Rule 41(b) of the Federal Rules of Civil Procedure. (14) A clear, legible copy of every pleading or other document filed shall

accomp any each original pleading or other document filed wit h t h e Clerk for use by the Dist rict Judge or M agist rat e Judge to whom the case is assigned. Failure to comp l y w i t h t his requirement may res u l t in the pleading or document being stricken without further not ice to Plaintiff. (15) This matter is referred to M agist rat e Judge David K. Duncan pursuant to Rule 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings. DAT ED this 9th day of November, 2005.

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