Godard v. Maricopa County Durango Jail et al

Filing 3

ORDER - The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Judge James A Teilborg on 4/6/11. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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André Michael Godard,
Plaintiff,

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vs.

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Durango Jail, et al.,
Defendants.

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No. CV 11-604-PHX-JAT (DKD)
ORDER

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Plaintiff André Michael Godard, who is confined in the Maricopa County Durango

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Jail, has filed a pro se civil rights Complaint (Doc. 1) and paid the filing fee. The Court will

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dismiss the Complaint with leave to amend.

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I.

Statutory Screening of Prisoner Complaints

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

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

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

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

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

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28 U.S.C. § 1915A(b)(1), (2).

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

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

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

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

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

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statements, do not suffice.” Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other facts,

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a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the

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action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court

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should not, however, advise the litigant how to cure the defects. This type of advice “would

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undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225,

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231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was

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required to inform a litigant of deficiencies). Plaintiff’s Complaint will be dismissed for lack

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of subject matter jurisdiction, with leave to amend because the Complaint may possibly be

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saved by amendment.

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II.

Lack of Jurisdiction

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Federal courts have limited jurisdiction, and limitations on the court’s jurisdiction
must neither be disregarded nor evaded. Owen Equip. & Erection Co. v. Kroger, 437 U.S.
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365, 374 (1978). The Court is obligated to determine sua sponte whether it has subject

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matter jurisdiction. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004).

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See also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-

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matter jurisdiction, the court must dismiss the action.”).

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Rule 8(a) of the Federal Rules of Civil Procedure requires that “[a] pleading that states

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a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s

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jurisdiction . . . .” In order to proceed in federal court, Plaintiff must demonstrate some right

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of action and legal entitlement to the damages he seeks. In this case, the most likely source

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of a right to sue is 42 U.S.C. § 1983. The Court has jurisdiction over such cases pursuant to

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28 U.S.C. § 1343(a)(3).

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Plaintiff has not alleged that his Complaint arises pursuant to 42 U.S.C. § 1983 or that

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the Court has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3). He has alleged jurisdiction

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pursuant to “Lower Buckeye Jail & Durango J.” These are buildings, not a jurisdictional

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basis for a lawsuit. See Watson v. Chessman, 362 F. Supp. 2d 1190, 1194 (S.D. Cal. 2005)

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(“The court will not . . . infer allegations supporting federal jurisdiction; federal subject

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matter [jurisdiction] must always be affirmatively alleged.”). Therefore, the Court will

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dismiss Plaintiff’s Complaint without prejudice.

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his Complaint nevertheless would have been dismissed for failure to state a claim. Section

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1983 provides a cause of action against persons acting under color of state law who have

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violated rights guaranteed by the United States Constitution and federal law. 42 U.S.C.

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§ 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). A “person”

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under § 1983 includes municipalities, other local government units, and other “bodies politic

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and corporate,” Monell v. New York City Department of Social Services, 436 U.S. 658, 688-

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90 (1978). Plaintiff did not allege any violations of rights guaranteed by the United States

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Constitution and federal law, and the Defendants named in the original Complaint—the

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Durango Jail and Lower Buckeye Jail—are buildings, not people or legally created entities

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The Court notes that if Plaintiff had alleged a valid jurisdictional basis for his lawsuit,

capable of being sued.
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III.

Leave to Amend

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For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to allege

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a jurisdictional basis. Within 30 days, Plaintiff may submit a first amended complaint to cure

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the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form

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to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form,

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the Court may strike the amended complaint and dismiss this action without further notice

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to Plaintiff.

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Plaintiff must clearly designate on the face of the document that it is the “First

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Amended Complaint.” The first amended complaint must be retyped or rewritten in its

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entirety on the court-approved form and may not incorporate any part of the original

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Complaint by reference. Plaintiff may include only one claim per count.

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If Plaintiff files an amended complaint, Plaintiff must write short, plain statements

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telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of

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the Defendant who violated the right; (3) exactly what that Defendant did or failed to do;

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(4) how the action or inaction of that Defendant is connected to the violation of Plaintiff’s

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constitutional right; and (5) what specific injury Plaintiff suffered because of that

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Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff

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fails to affirmatively link the conduct of each named Defendant with the specific injury

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suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to

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state a claim. Conclusory allegations that a Defendant or group of Defendants have

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violated a constitutional right are not acceptable and will be dismissed.

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F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,

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1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as

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nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original

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complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d

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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963

565, 567 (9th Cir. 1987).
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IV.

Warnings

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A.

Address Changes

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

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

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

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action.

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B.

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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Copies

to Plaintiff.

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C.

Possible “Strike”

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Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails

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to file an amended complaint correcting the deficiencies identified in this Order, the

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dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

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Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil

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judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a

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court of the United States that was dismissed on the grounds that it is frivolous, malicious,

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or fails to state a claim upon which relief may be granted, unless the prisoner is under

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imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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

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warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at

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1260-61 (a district court may dismiss an action for failure to comply with any order of the

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Court).

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D.

Possible Dismissal

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IT IS ORDERED:
(1)

The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has

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30 days from the date this Order is filed to file a first amended complaint in compliance with

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this Order.

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(2)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

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Court must, without further notice, enter a judgment of dismissal of this action with prejudice

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that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).

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(3)

The Clerk of Court must mail Plaintiff a court-approved form for filing a civil

rights complaint by a prisoner.
DATED this 6th day of April, 2011.

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