Webb v. Arpaio et al

Filing 4

ORDER (Service Packet): Pla's application to proceed in forma pauperis 3 is granted. Dfts Maricopa County Sheriff's Office and Maricopa County Sheriff Detention Center are dismissed from this action for failure to state a claim upon which relief may be granted. The Clerk must send pla a service packet...for dft Joseph Arpaio. This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 USC section 636(b)(1). (See document for full details). Service Packet due by 3/5/2009. Signed by Judge Mary H Murguia on 2/12/2009. (LAD)

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WO

RP

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Derric Webb, Plaintiff, vs. Joseph Arpaio, et al., Defendant.

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No. CV 08-2144-PHX-MHM (MEA) ORDER

Plaintiff Derric Webb, who is confined in the Maricopa County Towers Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. #1) and an Application to Proceed In Forma Pauperis (Doc. #3). The Court will grant the Application to Proceed In Forma Pauperis, require Defendant Arpaio to answer Counts I and II of the Complaint, and dismiss the remaining claims and Defendants Maricopa County Sheriff's Office and Maricopa County Sheriff Detention Center for failure to state a claim upon which relief may be granted. I. Application to Proceed In Forma Pauperis and Filing Fee Plaintiff's Application to Proceed In Forma Pauperis (Doc. #3) will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $3.00. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward

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the fees according to the statutory formula. II. Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 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). III. Complaint Plaintiff alleges five counts in the Complaint. Named as Defendants in the Complaint are: (1) Joseph Arpaio, Maricopa County Sheriff; (2) Maricopa County Sheriff's Office; and (3) Maricopa County Sheriff Detention Center. Plaintiff seeks a jury trial, injunctive relief, and monetary damages. IV. Dismissal of Defendants A. Defendant Maricopa County Sheriff's Office

The Maricopa County Sheriff's Office is not a proper Defendant. In Arizona, the responsibility of operating jails and caring for prisoners is placed by law upon the sheriff. See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. § 31-101. A sheriff's office, such as the Maricopa County Sheriff's Office, is simply an administrative creation of the county sheriff to allow him to carry out his statutory duties and not a "person" amenable to suit pursuant to § 1983. Accordingly, Defendant Maricopa County Sheriff's Office is not a proper Defendant and will be dismissed from this action for failure to state a claim upon which relief may be granted. B. Defendant Maricopa County Sheriff Detention Center

The Maricopa County Sheriff Detention Center is also not a proper Defendant to this action. Claims under § 1983 are directed at "bodies politic and corporate." Monell v. New
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York City Department of Social Services, 436 U.S. 658, 688-89 (1978). Under the Civil Rights Act of 1871, Congress intended municipalities and other local government units to be included among those persons to whom § 1983 applies. Id. at 689-690. Because a jail is neither a corporation nor a body politic, it is not a person for purposes of § 1983, and accordingly, the Maricopa County Sheriff Detention Center will be dismissed from this action for failure to state a claim upon which relief may be granted. V. Discussion A. Count I.

In Count I, Plaintiff claims that his due process rights were violated by Defendant Arpaio when he knowingly, intentionally, and willfully with deliberate indifference to inmate health or safety placed Plaintiff at risk of serious harm as per the "Surgeon General Office." Plaintiff alleges that Defendant Arpaio forms the policies of the Maricopa County Sheriff's Office jails and is well aware that asbestos is present in the jails along with other serious health risks such as galvanized pipe and lead paint. Plaintiff further alleges that asbestos and lead contamination are in the living areas and the day rooms. Liberally construed, Plaintiff has adequately stated a claim in Count I, and the Court will require Defendant Arpaio to answer Count I. B. Count II

In Count II, Plaintiff claims that his due process rights were violated by the overcrowded conditions in the Maricopa County Sheriff's Office jails. Plaintiff alleges that Defendant Arpaio forms the policies at the Maricopa County Sheriff's Office jails and is well aware of the overcrowding in his jails. Plaintiff further alleges that due to overcrowding and a lack of "Sound Board," noise levels are almost deafening, disrupting any and all activities. Plaintiff claims that this creates a lot of agitation with inmates which escalates the level of fights, which puts Plaintiff in danger of not just emotional injury, but also physical injury. Liberally construed, Plaintiff has adequately stated a claim in Count II, and the Court will require Defendant Arpaio to answer Count II.

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C.

Count III

In Count III, Plaintiff claims that his due process rights were violated when Defendants Maricopa County Sheriff's Office and Arpaio failed to provide him with significant access to the courts as required in "Hart vs. Hill."1 Plaintiff alleges that on

several occasions he submitted legal orders to Inmate Legal Services asking how he was to pursue another civil matter and they stated that they were not permitted to assist or advise Plaintiff in the matter. 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). An "actual injury" is "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. at 348. "[A]n inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Id. at 351. Moreover, the constitutional right of access to a library or legal assistance extends only through the pleading stage. Cornett v. Donovan, 51 F.3d 894, 898-900 (9th Cir. 1995). To show actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the conduct of the defendants prevented him from bringing to court a nonfrivolous claim that he wished to present. Lewis,518 U.S. at 352-53. That nonfrivolous claim must be a direct or collateral attack on the inmate's sentence, or a challenge to the conditions of his confinement. Id. at 355. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. (emphasis in original). In Count III, Plaintiff alleges that his "civil issue was against another law enforcement branch" and that he "lost possible damages for physical injuries & mental injuries that could

Because Maricopa County Sheriff's Office is being dismissed as an improper Defendant, the Court will not consider Plaintiff's claim in Count III against Defendant Maricopa County Sheriff's Office.
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have been awarded" to him. Plaintiff does not allege that his claim was a nonfrivolous one. Moreover, the claims does not appear to have been a direct or collateral attack on the his sentence, or a challenge to the conditions of his confinement. Therefore, Plaintiff has failed to show the requisite actual injury needed to state a claim for relief in Count III. Accordingly, Count III will be dismissed for failure to state a claim upon which relief may be granted. In so doing, the Court notes that Plaintiff refers in Count III to the requirements of "Hart vs. Hill." The Court assumes that Plaintiff is referring to the class action of Hart v. Hill, CV 77-0479-PHX-EHC (MS), now Graves v. Arpaio, CV 77-0479-PHX-NVW (MS). However, with respect to any injunctive relief sought that might be sought by Plaintiff in connection with the rights enumerated in the Amended Judgment of Graves, Plaintiff should note that such relief may only be sought or enforced within the original case. The Amended Judgment precludes Plaintiff from seeking separate and individual injunctive relief.

With respect to any claim for monetary damages, Graves provides no independent cause of action. Although the class action does not foreclose an individual complaint for damages, see Hiser v. Franklin, 94 F.3d 1287 (9th Cir. 1996), Plaintiff must demonstrate some right of action and legal entitlement to the monetary damages he seeks. In a case challenging the conditions of confinement of pretrial detainees, the most likely source of a right to sue (of which Plaintiff has availed himself in this action) is 42 U.S.C. § 1983. However, in order to state a claim under § 1983, Plaintiff must allege a cognizable constitutional claim, which he has failed to do in Count III. D. Count IV

In Count IV, Plaintiff claims that his due process rights were violated from August 21, 2007 until November 5, 2008 when "Defendants" denied him one hour a day, six days a week, of recreation time as allotted in "Hart vs. Hill" at a "denial rate of 70%." To state a viable constitutional claim under 42 U.S.C. § 1983, Plaintiff must show an affirmative link between the alleged injury and the conduct of an individual Defendant.
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Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). However, Plaintiff has not referred to the conduct of any individual Defendant in Count IV. Instead, Plaintiff has only vaguely referred to "Defendants" as a group. Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir. 1979). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Ivey, 673 F.2d at 268. Accordingly, Count IV will be dismissed for failure to state a claim upon which relief may be granted. E. Count V

In Count V, Plaintiff claims that his due process rights have been violated because "staff at Center have not treated" him "in a timely fashion & have not p[re]scribed him proper pain medication." Plaintiff alleges that he "entered County Jail with a head injury" on August 21, 2007, and that he has "put in several medical requests of pain and other complications." Plaintiff has not shown an affirmative link between the alleged injury and the conduct of any individual Defendant in Count V. Rizzo, 423 U.S. at 371-72, 377. To the extent that "Center" may refer to the Maricopa County Sheriff Detention Center, the Court notes that Defendant Maricopa County Sheriff Detention Center is being dismissed as an improper Defendant. Accordingly, Count V will be dismissed for failure to state a claim upon which relief may be granted. VI. Warnings A. Release

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay
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the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action. B. Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. C. Copies

Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff. D. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). IT IS ORDERED: (1) (2) Plaintiff's Application to Proceed In Forma Pauperis (Doc. #3) is granted. As required by the accompanying Order to the appropriate government agency,

Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $3.00. (3) Counts III, IV, and V of the Complaint (Doc. #1) are dismissed for failure to

state a claim upon which relief may be granted. (4) Defendants Maricopa County Sheriff's Office and Maricopa County Sheriff

Detention Center are dismissed from this action for failure to state a claim upon which relief may be granted. (5) Defendant Joseph Arpaio must answer Counts I and II of the Complaint.
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(6)

The Clerk of Court must send Plaintiff a service packet including the

Complaint (Doc. #1), this Order, and both summons and request for waiver forms for Defendant Joseph Arpaio. (7) Plaintiff must complete and return the service packet to the Clerk of Court

within 20 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (8) If Plaintiff does not either obtain a waiver of service of the summons or

complete service of the Summons and Complaint on Defendant Arpaio within 120 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(I). (9) The United States Marshal must retain the Summons, a copy of the

Complaint, and a copy of this Order for future use. (10) The United States Marshal must notify Defendant Joseph Arpaio of the

commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. The Marshal must immediately file requests for waivers that were returned as undeliverable and waivers of service of the summons. If a waiver of service of summons is not returned by Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: (a) personally serve copies of the Summons, Complaint, and this Order

upon Defendant Arpaio pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and (b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Complaint, or this Order and for preparing new process receipt and
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return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (11) If Defendant Arpaio agrees to waive service of the Summons and

Complaint, he must return the signed waiver forms to the United States Marshal, not the Plaintiff. (12) Defendant Arpaio must answer Counts I and II of the Complaint or otherwise

respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (13) This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules

72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). DATED this 12th day of February, 2009.

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