Garcia v. Drake et al

Filing 13

ORDER that 11 Plaintiff's Second Amended Complaint and this action are dismissed for failure to state a claim, and the Clerk must enter judgment accordingly. The Clerk must make an entry on the docket stating that the dismissal for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24 (a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge James A Teilborg on 8/30/12. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Anthony Garcia, Sr.,
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Plaintiff,
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vs.
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Sergeant Drake, et al.,
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Defendants.
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No. CV 12-0028-PHX-JAT (MHB)
ORDER

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Plaintiff Robert Anthony Garcia, Sr., who is confined in the Lower Buckeye Jail in

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Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, which

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the Court dismissed for failure to state a claim with leave to amend. (Doc. 1.) Plaintiff filed

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a First Amended Complaint, which the Court also dismissed for failure to state a claim with

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leave to amend.. (Doc. 7, 8.) Plaintiff has filed a Second Amended Complaint. (Doc. 11.)

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The Court will dismiss the Second Amended Complaint for failure to state a claim and this

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action.1

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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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Plaintiff filed two other civil rights cases that appear to be related to the events at
issue in this case. Garcia v. Glendale Police Dep’t, No. 11-2260-PHX-JAT (MHB), and
Garcia v. Miller, No. 11-2262-PHX-JAT (MHB).

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28 U.S.C. § 1915A(b)(1), (2).

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

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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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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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II.

Second Amended Complaint

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Plaintiff alleges four counts for denial of medical care, denial of the right to petition

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for redress of grievances, retaliation, and denial of access to the courts. He sues Maricopa

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County Sheriff’s Office (MCSO) Sergeants Drake, Moore, and Wade; Psychiatrist Gina

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Drew; and Detention Officer Dun. Plaintiff appears to seek injunctive and punitive relief.

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In the Second Amended Complaint filed in this case, Plaintiff alleges the following:

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on October 27, 2010, Glendale Police Officers used excessive force against Plaintiff and
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injured him. Plaintiff was taken to Maryvale Hospital, where he was x-rayed and found to

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have a broken humerus. Glendale officers insisted that Plaintiff be released from the hospital

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so that he could be booked into the Maricopa County Jail, but a nurse told the officers that

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once Plaintiff was booked, he should be promptly taken to Maricopa County Hospital for

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surgery. She also provided the officers with a manilla envelope containing a compact disc

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with Plaintiff’s x-rays and prescriptions. After Plaintiff was booked into Maricopa County’s

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Fourth Avenue Jail, he was not taken to the hospital for treatment. Further, the manilla

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envelope with Plaintiff’s medical records was lost, although the prescriptions were found in

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Plaintiff’s property when he bonded out. Plaintiff was held in the Maricopa County Jail for

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two weeks before he was taken to Maricopa County Hospital, where new x-rays were taken.

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Plaintiff thereafter posted bond without ever having received surgery.

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III.

Failure to State a Claim

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct about which he complains was committed by a person acting under the color of state

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law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v.

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Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). Negligence is not sufficient to state a claim

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under § 1983. Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Further, to state a valid

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constitutional claim, a plaintiff must allege that he suffered a specific injury as a result of the

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conduct of a particular defendant and he must allege an affirmative link between the injury

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and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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In addition, to state a claim against a defendant, “[a] plaintiff must allege facts, not

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simply conclusions, that show that an individual was personally involved in the deprivation

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of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an

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individual to be liable in his official capacity, a plaintiff must allege that the official acted

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as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles, 294 F.3d

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1186, 1188 (9th Cir. 2001). Further, there is no respondeat superior liability under § 1983,

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so a defendant’s position as the supervisor of someone who allegedly violated a plaintiff’s

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constitutional rights does not make him liable. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
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691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his

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individual capacity, “is only liable for constitutional violations of his subordinates if the

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supervisor participated in or directed the violations, or knew of the violations and failed to

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act to prevent them.” Taylor, 880 F.2d at 1045. In addition, where a defendant’s only

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involvement in allegedly unconstitutional conduct is the denial of administrative grievances,

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the failure to intervene on a prisoner’s behalf to remedy the alleged unconstitutional behavior

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does not amount to active unconstitutional behavior for purposes of § 1983. Shehee v.

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Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); accord Mintun v. Blades, No. CV-06-139, 2008

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WL 711636, at *7 (D. Idaho Mar. 14, 2008); Stocker v. Warden, No. 1:07-CV-00589, 2009

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WL 981323, at *10 (E.D. Cal. Apr. 13, 2009).

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A.

Count I

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Plaintiff designates Count I as a claim concerning medical care and violation of due

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process or the right to be heard. Plaintiff recites the facts summarized above, but he does not

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allege any facts against any Defendant concerning medical care. In Count I, Plaintiff only

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asserts allegations against one Defendant, Sergeant Drake, concerning the handling of

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Plaintiff’s grievances. Accordingly, the Court construes Plaintiff’s allegations in Count I as

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a claim for violation of his right to petition for redress of grievances.

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“There is no legitimate claim of entitlement to a [jail] grievance procedure.” Mann

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v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). But if there is an established grievance

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procedure, the denial of access to the grievance process may state a constitutional violation.

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Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), abrogated on other grounds by Shaw v.

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Murphy, 532 U.S. 223 (2001); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.

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1989). The “government” to which the First Amendment guarantees a right to petition for

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redress of grievances includes jail authorities. Hall, 64 F.3d at 1279 (citing Soranno’s Gasco,

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Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.1989)). It does not, however, entitle a prisoner

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to a particular resolution of a grievance.

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In Count I, Plaintiff alleges the following: at some point, he submitted a medical

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grievance and received two responses, which did not resolve the issue. Defendant Drake
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blamed the Glendale Police Department for failing to forward Plaintiff’s medical records.

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Drake refused to sign grievances and prolonged the grievance process.

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The above allegations reflect that Plaintiff was dissatisfied with the handling of his

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grievances. Plaintiff does not allege facts, including when and how, Drake or anyone else

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denied him access to an available grievance system. Accordingly, Plaintiff fails to state a

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constitutional violation in Count I and it will be dismissed.

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B.

Count II

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Plaintiff designates Count II as a claim for retaliation. To state a constitutional claim

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for retaliation, a plaintiff must allege that a defendant acting under color of state law took

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adverse action against him because he engaged in protected conduct, the adverse action was

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not narrowly tailored to advance legitimate goals, and the adverse action chilled the

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plaintiff’s exercise of his First Amendment rights or caused him to suffer more than minimal

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harm. Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005); see also Hines v. Gomez,

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108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an inmate must show (1) that

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the prison official acted in retaliation for the exercise of a constitutionally-protected right,

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and (2) that the action “advanced no legitimate penological interest”).

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Plaintiff alleges the following in support of Count II: Sergeant Dun retrieved

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grievance complaints Plaintiff submitted against Sergeants Drake and Wade “to witch [sic]

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5g+ Dun Received them then the next day came back only to [confiscate] my copys [sic] to

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show no existence.” (Doc. 11 at 4.) Plaintiff continues:

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Sgt Wade earlier also [confiscated] some of my grievan[c]es in the hall way
at 4th ave jail and stated these grievances never existed. To [which] the
grievances were on medical on Count I. Defendant Moore also took some of
my gr[e]ivances and failed to give me my copy upon sub[mission] and
returned with only a few while the rest never continued in the process. Sgt
Dun when [confiscating] my issued cop[ies] threaten[e]d to cuff me and if I
refused to turn over my copies of grievances that were on the following stated
Sgts Drake, Moore, Wade. This is the ta[c]tical way of how Sgt den[ied] me
due process to [which] I am not even sentenced. These Sgts refused accepting
my grievances on a timely manner and blant[ant]ly bent the process of
prot[ocol] to dictate what can go in/and what can not and den[y]ing me due
process. Confiscation and corrupt and deceitful Sgts does rise to the level of
a const[itutional] violation. The courts must recognize the lies that are taking
place at 4th ave jail with Sgt Drake, and Moore and failure of due process.

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(Id.)

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Plaintiff appears to complain about the confiscation of his copies of grievances. Even

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if true, such confiscations, absent more, do not rise to the level of a constitutional violation.

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Plaintiff otherwise appears to complain of delays or non-compliance with the grievance

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procedures, but he fails to allege facts to support when and how anyone failed to comply with

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those procedures. Moreover, Plaintiff does not allege facts to support that he was denied

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access to an available grievance process. Otherwise, Plaintiff fails to allege that copies of

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grievances were confiscated in retaliation for Plaintiff exercising a constitutionally-protected

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right rather than, for example, abuse of the Jail grievance process. Accordingly, Plaintiff

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fails to state a claim in Count II and it will be dismissed.

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C.

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Plaintiff designates Count III as a claim for retaliation based on the following

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allegations: On June 4, 2012, Sergeants Drake and Moore did not give Plaintiff the

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opportunity to sign or “look at” a grievance

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Count III

[b]ecause I refused to sign one grievance due to no signatures again. Therefor
Drake/Moore just assumed I would refuse the next. Again taking away from
fair due process. This was to psysic [sic] to [which] again I did not need
medical care or did the jail need access to my files. Drake [coerced] me into
signing that I did need to sign to [which] I told him no several times. He done
[sic] this to maintain a hold of my records and to state to district court I gave
[permission] to [which] the grievan[c]e was on the jail being the 3rd Further
violating dr + patient con[fidentiality]. This is how 4th ave jail works all
signatures are considered void due two [sic] the jail entit[ies] violating and
us[]ing dec[eit] to maintain conted [sic], illegally, legal. The courts must
interv[e]ne due to I am reporting officers that are not honest and will lie for
[survival]. Drake & Moore verbally har[]assed me, lied, tricked me into
signing acknowledgment by ways of saying “it like receiving a package” “for
me to sign then read” us[]ing blocking methods, and us[]ing the fact Im on
prot[ocol] that Im receiving better access to grievance proced[ure], this really
being denied putting [illegible] in [illegible] are in proper cause.

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(Doc. 11 at 5.)

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To the extent that Plaintiff asserts verbal abuse or harassment, he fails to state a claim.

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Somers v. Thurman, 109 F.3d 614, 624 (9th Cir.1997); Oltarzewski v. Ruggiero, 830 F.2d

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136, 139 (9th Cir. 1987)). The Court is otherwise unable to discern facts to support that

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Defendants Drake or Moore retaliated against Plaintiff for engaging in constitutionally-6-

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protected conduct. Accordingly, Count III will be dismissed for failure to state a claim.

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D.

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Plaintiff designates Count IV as a claim for retaliation and denial of access to the

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Count IV

courts. Plaintiff alleges the following:
I put in another gr[ie]vance to psy[chiatric] care, [which] was returned to me.
I resubmitted gr[ie]vance and was seen by psychiatric staff, after weeks went
by, Plaintiff sign an institutional gr[ie]vance to go external but Gina Drew,
never gave me my cop[ies] I mentioned this to her. She said I would get it in
the mail. After severa[l] weeks lat[]er I received it back in the inmate mail so
I proceeded to write the external gr[ie]vance and attach the copy Gina Drew
had [or made]. And Sgt Drak[e] and Sgt Moore would not take it. Stating I
already signed it and its out of time frame. Again reasons for prot[ocol] is to
handle gr[ie]vances due to the severity of amount and eliminate time limits.
To [which] is a lie. Because of these Det Sgt lies and corrupt methods all
signatures of mine up to this date are consid[er]ed void and mute.
(Doc. 11 at 6.)

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Plaintiff fails to allege the dates when the above events occurred. To the extent that

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the Court is able to discern what Plaintiff is attempting to allege, he appears to assert that

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Drake and Moore refused to accept an untimely grievance or grievance appeal. That does

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not amount to retaliation for exercising his constitutionally-protected rights or deny him

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access to an available grievance procedure.

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Plaintiff also designates Count IV as a claim for denial of access to the courts. The

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right of meaningful access to the courts prohibits state officials from actively interfering with

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an inmate’s attempt to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350

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(1996). That right, however, only encompasses the ability to bring petitions or complaints

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to federal court and not to discover or even effectively litigate such claims once filed with

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a court. Id. at 354; see also Cornett v. Donovan , 51 F.3d 894, 899 (9th Cir. 1995) (“The

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right of access is designed to ensure that a habeas petition or civil rights complaint of a

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person in state custody will reach a court for consideration.”) The right “guarantees no

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particular methodology but rather, the conferral of a capability– the capability of bringing

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contemplated challenges to sentences or conditions of confinement before the courts.”

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Lewis, 518 U.S. at 356. Further, the denial of access to a paralegal or use of a law library

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is not actionable if there is no claim of prejudice to an existing or future legal action. Id. at
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351-53. That is, an inmate must establish that he suffered an “actual injury” when he alleges

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a denial of access to the courts. See Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir. 1994).

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An “actual injury” is “actual prejudice with respect to contemplated or existing litigation,

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such as the inability to meet a filing deadline or present a claim.” Lewis, 518 U.S. at 348.

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In other words, a plaintiff must allege facts to support that a defendant’s conduct prevented

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him from bringing to court a non-frivolous claim that he wished to present. Id. at 351-53.

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A plaintiff “must identify a nonfrivolous, arguable underlying claim,” and this underlying

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claim “must be described in the complaint.” Christopher v. Harbury, 536 U.S. 403, 414-15

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(2002).

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Plaintiff fails to allege facts to support that he was denied the ability to bring petitions

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or complaints to court. Indeed, Plaintiff has filed several federal cases, including this one.

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Moreover, Plaintiff fails to allege an actual injury. He does not allege facts to support that

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any Defendant’s conduct prevented him from bringing a non-frivolous claim, including a

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nonfrivolous, underlying claim. Accordingly, Plaintiff also fails to state a claim for denial

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of access to the courts. Therefore, the Court will dismiss Count IV for failure to state a

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claim.

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IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given if

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a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc.,

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885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated

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failure to cure deficiencies is one of the factors to be considered in deciding whether justice

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requires granting leave to amend. Moore, 885 F.2d at 538.

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Plaintiff has made three efforts at crafting a viable complaint and appears unable to

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do so despite specific instructions from the Court. The Court finds that further opportunities

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to amend would be futile. Therefore, the Court, in its discretion, will dismiss Plaintiff’s
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Second Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s Second Amended Complaint (Doc. 11) and this action are dismissed

for failure to state a claim, and the Clerk of Court must enter judgment accordingly.
(2)

The Clerk of Court must make an entry on the docket stating that the dismissal

for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.

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DATED this 30th day of August, 2012.

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