James v. Ryan, et al

Filing 28

ORDER that Plaintiff's 23 Motion for Temporary Restraining Order and Preliminary Injunction is denied without prejudice. Plaintiff's 25 Motion for Disclosure is denied. Count Two is dismissed without prejudice. Defendant Ryan mu st answer Count One of the First Amended Complaint. The Clerk of Court must send Plaintiff a service packet and Plaintiff must complete and return within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge James F. Metcalf. Signed by Judge G Murray Snow on 8/6/2012. (See attached PDF for complete details.) (LFIG)

1

WO

KM

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Thomas M. James,
Plaintiff,

10
11

vs.

12
Charles L. Ryan, et al.,
13
Defendants.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 10-510-PHX-GMS (JFM)
ORDER

15
16

On March 4, 2010, Plaintiff Thomas M. James, who is confined in the Arizona State

17

Prison Complex-Douglas, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983

18

and an Application to Proceed In Forma Pauperis. In a March 31, 2010 Order, the Court

19

granted the Application to Proceed and dismissed the Complaint. On April 20, 2010,

20

Plaintiff filed a Notice of Appeal to the Ninth Circuit Court of Appeals. On April 12, 2012,

21

the Ninth Circuit vacated the dismissal and remanded the action to this Court. On April 19,

22

2012, the Court issued an order granting Plaintiff 45 days to file a first amended complaint.

23

On June 5, 2012, Plaintiff filed his First Amended Complaint (Doc. 22). The Court

24

will order Defendant Ryan to answer Count of the First Amended Complaint and will dismiss

25

the remaining claim without prejudice. Plaintiff has also filed a Motion for Preliminary

26

Injunction (Doc. 23), which the Court will dismiss without prejudice.

27

...

TERMPSREF 28

1

I.

Statutory Screening of Prisoner Complaints

2

The Court is required to screen complaints brought by prisoners seeking relief against

3

a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

4

§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

5

claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

6

be granted, or that seek monetary relief from a defendant who is immune from such relief.

7

28 U.S.C. § 1915A(b)(1), (2).

8

A pleading must contain a “short and plain statement of the claim showing that the

9

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

10

demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

11

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

12

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

13

statements, do not suffice.” Id.

14

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

15

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

16

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

17

that allows the court to draw the reasonable inference that the defendant is liable for the

18

misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

19

relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

20

experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

21

allegations may be consistent with a constitutional claim, a court must assess whether there

22

are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

23
24

must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

25

Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

26

than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

27

94 (2007) (per curiam)).

28
TERMPSREF

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

....
-2-

1

II.

2
3

First Amended Complaint
In his two-count First Amended Complaint, Plaintiff sues Arizona Department of

Corrections Director Charles L. Ryan.

4

In Count One, Plaintiff claims that his First Amendment rights are violated by

5

Defendant Ryan’s policy of prohibiting inmates from receiving adult sexually explicit

6

publications. Plaintiff alleges that the prohibition includes a ban on all “education books and

7

magazines, religious education books and magazines, and books and magazines for education

8

purpose and leisure, comic books, and comic and cartoon art work magazines” that depict

9

in part or completely, drawings of nudity, photographs of art work with nudity, or

10

photographs from a friend or wife that depict partial nudity or simply a person in a bathing

11

suit. Plaintiff claims that the ban does not serve an educational purpose or further

12

rehabilitation.

13
14

In Count Two, Plaintiff claims that the ban violates his Fourteenth Amendment due
process and equal protection rights.

15
16

Plaintiff seeks declaratory and injunctive relief.
III.

Failure to State a Claim

17

Plaintiff has not alleged any facts in Count Two that support his claim that Defendant

18

Ryan’s policy violates his Fourteenth Amendment due process and equal protection rights.

19

Plaintiff has therefore failed to state a claim in Count Two and Count Two will be dismissed.

20

IV.

Claims for Which an Answer Will be Required

21

Liberally construed, Plaintiff has adequately stated a First Amendment claim against

22

Defendant Ryan in Count One. The Court will require Defendant Ryan to answer Count

23

One.

24

V.

Motions

25
26

Preliminary Injunction. Plaintiff seeks an order requiring Defendant Ryan to “show cause

27

why his said policy in D.O. 914 and its amendments thereto are legal under state and federal

28
TERMPSREF

On June 5, 2012, Plaintiff filed a Motion for Temporary Restraining Order and

standards[.]”
-3-

1

The purpose of preliminary injunctive relief is to preserve the status quo. Regents of

2

the University of California v. A.B.C., Inc., 747 F.2d 511, 515 (9th Cir. 1974). For a

3

preliminary injunction, a party must show either (1) a likelihood of success on the merits and

4

the possibility of irreparable injury, or (2) that serious questions going to the merits were

5

raised and the balance of hardships tips sharply in his favor. Sun Microsystems, Inc. v.

6

Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999) (quotation omitted) These factors

7

represent two points on a sliding scale, so that “the greater the relative hardship to the

8

moving party, the less probability of success must be shown.” Id. (citation omitted).

9

Similarly, to demonstrate entitlement to a temporary restraining order, Plaintiff must show

10

by specific facts that he is in danger of immediate and irreparable harm. Fed.R.Civ.P. 65(b).
In this case, Plaintiff does not seek relief which would preserve the status quo.

11
12

Plaintiff asks simply that the Court order Defendant to demonstrate why his policy regarding

13

nudity in publications received by inmates is legal. This is essentially the purpose of

14

requiring Defendant to answer Plaintiff’s First Amended Complaint; Plaintiff’s requested

15

relief does nothing to prevent the irreparable harm (denial of publications) that Plaintiff

16

asserts in his Motion. Accordingly, the Court will deny without prejudice Plaintiff’s Motion

17

for Temporary Restraining Order and Preliminary Injunction.

18

Plaintiff has also filed a “Motion for Disclosure” in which he seeks the names of

19

Arizona Department of Corrections employees. Plaintiff’s motion is premature and will be

20

denied. Defendant has not yet been served or filed an answer in this action. After service

21

is completed and Defendant files an answer, the Court will issue a scheduling order that sets

22

the time for the parties to conduct discovery.

23

VI.

Warnings

24
25

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

26

Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

27

the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

28
TERMPSREF

A.

Release

in dismissal of this action.
-4-

1

B.

Address Changes

2

Plaintiff must file and serve a notice of a change of address in accordance with Rule

3

83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

4

relief with a notice of change of address. Failure to comply may result in dismissal of this

5

action.

6

C.

Copies

7

Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy

8

of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate

9

stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit

10

an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply

11

may result in the filing being stricken without further notice to Plaintiff.

12

D.

Possible Dismissal

13

If Plaintiff fails to timely comply with every provision of this Order, including these

14

warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,

15

963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

16

comply with any order of the Court).

17

IT IS ORDERED:

18

(1)

19

Plaintiff’s June 5, 2012 Motion for Temporary Restraining Order and

Preliminary Injunction (Doc. 23) is denied without prejudice.

20

(2)

Plaintiff’s June 5, 2012 Motion for Disclosure (Doc. 25) is denied.

21

(3)

Count Two is dismissed without prejudice.

22

(4)

Defendant Ryan must answer Count One of the First Amended Complaint.

23

(5)

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

24
25

for Defendant Ryan.

26

...

27

...

28
TERMPSREF

Amended Complaint (Doc. 22), this Order, and both summons and request for waiver forms

...
-5-

1

(6)

Plaintiff must complete1 and return the service packet to the Clerk of Court

2

within 21 days of the date of filing of this Order. The United States Marshal will not provide

3

service of process if Plaintiff fails to comply with this Order.

4

(7)

If Plaintiff does not either obtain a waiver of service of the summons or

5

complete service of the Summons and First Amended Complaint on Defendant within 120

6

days of the filing of the Complaint or within 60 days of the filing of this Order, whichever

7

is later, the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).

8
9
10

(8)

The United States Marshal must retain the Summons, a copy of the First

Amended Complaint, and a copy of this Order for future use.
(9)

The United States Marshal must notify Defendant of the commencement of this

11

action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal

12

Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. The

13

Marshal must immediately file signed waivers of service of the summons. If a waiver

14

of service of summons is returned as undeliverable or is not returned by Defendant

15

within 30 days from the date the request for waiver was sent by the Marshal, the

16

Marshal must:

17

(a) personally serve copies of the Summons, First Amended Complaint, and

18

this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil

19

Procedure; and

20

(b) within 10 days after personal service is effected, file the return of service

21

for Defendant, along with evidence of the attempt to secure a waiver of service of the

22

summons and of the costs subsequently incurred in effecting service upon Defendant.

23

The costs of service must be enumerated on the return of service form (USM-285) and

24

must include the costs incurred by the Marshal for photocopying additional copies of

25

the Summons, First Amended Complaint, or this Order and for preparing new process

26
1

27
28
TERMPSREF

If a Defendant is an officer or employee of the Arizona Department of Corrections,
Plaintiff must list the address of the specific institution where the officer or employee works.
Service cannot be effected on an officer or employee at the Central Office of the Arizona
Department of Corrections unless the officer or employee works there.
-6-

1

receipt and return forms (USM-285), if required. Costs of service will be taxed

2

against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules

3

of Civil Procedure, unless otherwise ordered by the Court.

4

(10)

If Defendant agrees to waive service of the Summons and First Amended

5

Complaint, he must return the signed waiver forms to the United States Marshal, not

6

the Plaintiff.

7

(11)

Defendant must answer the First Amended Complaint or otherwise respond by

8

appropriate motion within the time provided by the applicable provisions of Rule 12(a) of

9

the Federal Rules of Civil Procedure.

10

(12)

This matter is referred to Magistrate Judge James F. Metcalf pursuant to Rules

11

72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized

12

under 28 U.S.C. § 636(b)(1).

13

DATED this 6th day of August, 2012.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TERMPSREF

-7-