Chapa v. Alvarez et al

Filing 27

ORDER (Service Packet) granting 21 Motion to Seal Record Support of First Amended Complaint. The Clerk of Court must seal the exhibits to the First Amended Complaint. FURTHER ORDERED denying 23 Motion for Temporary Restraining Order and Prelimina ry Injunction. FURTHER ORDERED denying 24 Motion for Court Orders. FURTHER ORDERED denying as moot 26 Motion for Court Order. FURTHER ORDERED Defendants Maricopa County Board of Supervisors, Barker, and Flaggman are dismissed without preju dice. FURTHER ORDERED Defendant Alvarez must answer the First Amended Complaint. The Clerk of Court must send Plaintiff a service packet including the 20 First Amended Complaint, this Order, and both summons and request for waiver forms for Defe ndant Alvarez. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. FURTHER ORDERED Defendant Alvarez must answer the First Amended Complaint or otherwiserespond by appropriat e motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. FURTHER ORDERED This matter is referred to Magistrate Judge David K. Duncan pursuant toRules 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). Signed by Judge David G Campbell on 2/11/13. (MAP)

1
2

KM

WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Ralph John Chapa,

10
11
12

No. CV 12-293-PHX-DGC (DKD)
Plaintiff,

vs.

ORDER

Jeffrey Alvarez, et al.,

13
14

Defendants.

15
16

On February 23, 2012, Plaintiff Ralph John Chapa, who is confined in the

17

Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42

18

U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In an April 9, 2012

19

Order, the Court granted the Application to Proceed, dismissed the Complaint, and gave

20

Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the

21

Order.

22

dismissed for failure to prosecute.

The Order was returned to the Court as undeliverable and this action was

23

On June 8, 2012, Plaintiff filed a “Notice of Change of Booking Number” and

24

provided the Court with an updated address. Plaintiff also challenged the dismissal of

25

this action because he stated that he never received the April 9th Order.

26

October 19, 2012 Order, the Court reopened this action and granted Plaintiff an

27

additional 30 days to file a First Amended Complaint.

28

TERMPSREF

In an

1

On November 13, 2012, Plaintiff filed his First Amended Complaint (Doc. 20).

2

The Court will order Defendant Alvarez to answer the First Amended Complaint and will

3

dismiss the remaining Defendants without prejudice.

4

I.

Statutory Screening of Prisoner Complaints

5

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

6

against a governmental entity or an officer or an employee of a governmental entity. 28

7

U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

8

has raised claims that are legally frivolous or malicious, that fail to state a claim upon

9

which relief may be granted, or that seek monetary relief from a defendant who is

10

immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

11

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

12

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

13

does not demand detailed factual allegations, “it demands more than an unadorned, the-

14

defendant-unlawfully-harmed-me accusation.”

15

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

16

conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

17

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

18

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

19

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

20

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

21

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

22

claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

23

on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

24

specific factual allegations may be consistent with a constitutional claim, a court must

25

assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

26

at 681.

27

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

28

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

TERMPSREF

-2-

1

342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

2

stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

3

Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

4

II.

First Amended Complaint

5

Plaintiff names the following Defendants in the First Amended Complaint:

6

Correctional Health Services Director Jeffrey Alvarez; Maricopa County Board of

7

Supervisors; Correctional Health Services “PA-C” Matthew Barker; and Assistant

8

Maricopa County Attorney Sherie Flaggman.

9

Plaintiff raises one claim for relief in which he alleges that, pursuant to a policy

10

implemented by Defendant Alvarez, he is denied prescription eyeglasses.1

11

claims that he has no money with which to obtain eyeglasses or family who can provide

12

eyeglasses for him. As a result of the denial of eyeglasses, Plaintiff states that the blood

13

vessels in his eye “exploded,” causing a loss of vision for one week, and that he suffers

14

severe headaches, nausea, and dizziness. Plaintiff submits a March 15, 2012 progress

15

note from neurologist Dr. Mark A. Merroto stating that Plaintiff “was seen by

16

ophthalmology on 03/26/2009. It was felt that he had a significant refractive error and

17

that he should be fitted with glasses. An uncorrected refractive error can often . . . be the

18

source of serious headaches.”

19

neurologist’s report but denied Plaintiff’s request for eyeglasses. Plaintiff also states that

20

he obtained an order from Maricopa County Superior Court for eyeglasses, but that

21

Defendant Alvarez refused to provide them.

22
23

Plaintiff

Plaintiff claims Defendant Alvarez reviewed the

Plaintiff seeks declaratory and injunctive relief, as well as money damages.
III.

Failure to State a Claim

24

A.

25

Plaintiff’s only allegation against the Maricopa County Board of Supervisors is

Maricopa County Board of Supervisors

26
27
28

TERMPSREF

1

Plaintiff also states that he was denied eyeglasses in 2003, 2004, and 2005. These
allegations appear to simply be background information, not claims for relief, and would,
in any event, be barred by the statute of limitations. The Court will therefore consider
Plaintiff’s allegations dating from 2011 to present.
-3-

1
2
3
4
5
6

that
The Maricopa County Board of Supervisors had the lawful duty to decide
which county department should bear the expense of providing eyeglasses
to the Plaintiff but instead chose to have the Maricopa County Attorney[’]s
Office create policies/procedures/protocols in conspiracy with CHS that
deprived the Plaintiff medically necessary and medically prescribed
eyeglass.
Amended Compl. at 13.

7

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

8

520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey

9

v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

10

Further, a liberal interpretation of a civil rights complaint may not supply essential

11

elements of the claim that were not initially pled. Id.

12

Plaintiff has not alleged facts demonstrating that he was denied eyeglasses because

13

of monetary decisions made by the Maricopa County Board of Supervisors. Further, the

14

Maricopa County Attorney’s Office represents Maricopa County in court; it does not set

15

medical policy for jail detainees and Plaintiff offers nothing more than a conclusory

16

allegation that the Board of Supervisors somehow delegated this authority to the

17

Maricopa County Attorney’s Office.

18

Maricopa County Board of Supervisors.

The Court will therefore dismiss Defendant

19

B.

Defendant Flaggman

20

Plaintiff’s facts demonstrate that Defendant Flaggman was the Assistant Maricopa

21

County Attorney who represented Correctional Health Services in opposing Plaintiff’s

22

state court motion for eyeglasses. Plaintiff’s facts show only that Defendant Flaggman

23

presented her client’s position to the state court; they do not demonstrate that Defendant

24

Flaggman was responsible for Correctional Health Services’ policy regarding the

25

provision of eyeglasses. The Court will dismiss Defendant Flaggman.

26

C.

27

Plaintiff alleges that Defendant Barker is a medical care provider who, at the

28

TERMPSREF

Defendant Barker

direction of Defendant Alvarez, denied Plaintiff’s request for eyeglasses.

-4-

This is

1

insufficient to show that Defendant Barker was deliberately indifferent to Plaintiff’s need

2

for eyeglasses. Plaintiff does not allege or demonstrate that Defendant Barker had any

3

authority to obtain eyeglasses for Plaintiff after the request had already been denied by

4

Defendant Alvarez. The Court will dismiss Defendant Barker.

5

IV.

Claims for Which an Answer Will be Required

6

Liberally construed, Plaintiff has adequately stated an Eighth and Fourteenth

7

Amendment medical claim against Defendant Alvarez for the denial of eyeglasses. The

8

Court will require Defendant Alvarez to answer the First Amended Complaint.

9

V.

Pending Motions

10

A.

11

Plaintiff has filed a Motion (Doc. 21) asking that the Court seal the exhibits to his

12

First Amended Complaint as they contain medical records. The Court will grant the

13

Motion.

14
15

Motion for Temporary Restraining Order and Preliminary Injunction
and January Motion for Court Order

16

On November 13, 2012 Plaintiff filed a Motion for Temporary Restraining Order

17

and Preliminary Injunction (Doc. 23). On January 2, 2013 Plaintiff filed a “Motion for

18

Court Order” (Doc. 26), requesting that the Court rule on the November Motion. The

19

court will deny the January 2nd Motion as moot.

20
21

B.

Motion to Seal Record in Support of First Amended Complaint

A temporary restraining order can be issued without notice

26

only if (1) it clearly appears from specific facts shown by
affidavit or by the verified complaint that immediate and
irreparable injury, loss, or damage will result to the applicant
before the adverse party or that party’s attorney can be heard
in opposition, and (2) the applicant’s attorney certifies to the
court in writing the efforts, if any, which have been made to
give the notice and the reasons supporting the claim that
notice should not be required.

27

Fed. R. Civ. P. 65(b). See also LRCiv 61.1.1 (“Ex parte restraining orders shall only

28

issue in accordance with Rule 65, Federal Rules of Civil Procedure.”). Plaintiff has not

22
23
24
25

TERMPSREF

-5-

1

certified what efforts, if any, he has made to give notice to Defendants. Accordingly, the

2

Court will deny Plaintiff’s Motion for a Temporary Restraining Order.

3

To obtain a preliminary injunction, the moving party must show “that he is likely

4

to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

5

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

6

the public interest.” Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365,

7

374 (2008). The moving party has the burden of proof on each element of the test.

8

Environmental Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal.

9

2000).

10

In this case, the relief Plaintiff seeks is extremely vague. Plaintiff asks that the

11

Court require Defendants to “arrange for an examination and a plan of treatment by a

12

qualified specialist outside of ‘CHS’ and to [issue] a preliminary injunction requiring the

13

Defendants to carry out the plan of treatment.” Plaintiff has a number of medical

14

conditions, but only the provision of eyeglasses is at issue in this case; accordingly,

15

Plaintiff’s request for relief does not appear to be directly related to his First Amended

16

Complaint.

17

Further, Plaintiff has not demonstrated that he will suffer irreparable harm in the

18

absence of a preliminary injunction. Although Plaintiff alleges that he suffers from

19

chronic pain and headaches as the result of the denial of eyeglasses, his medical records

20

also indicate that he receives pain medication and regular medical care. Accordingly,

21

Plaintiff has not demonstrated the type of irreparable injury necessary to obtain a

22

preliminary injunction. The Court will deny the Motion.

23

C.

24

On November 30, 2012, Plaintiff filed a Motion in which he claims a jail

25

employee in Inmate Legal Services is harassing him by denying him legal supplies and

26

delaying the processing of his legal pleadings. Plaintiff seeks an Order prohibiting the

27

employee form having access to Plaintiff’s legal materials and requiring Sheriff Arpaio to

28

immediately provide Plaintiff with legal supplies.

TERMPSREF

Motion for Court Orders, Harassment

-6-

1

Plaintiff’s Motion is essentially a request for injunctive relief. However, the

2

requested relief is not related to Plaintiff’s claims in his First Amended Complaint. A

3

district court should not issue an injunction when the injunction in question is not of the

4

same character, and deals with a matter lying wholly outside the issues in suit.

5

Kaimowitz v. Orland, Fla., 122 F.3d 41, 43 (11th Cir.) (per curiam), amended, 131 F.3d

6

950 (11th Cir. 1997) (per curiam). The Court will therefore deny the Motion.

7

VI.

Warnings

8

A.

9

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

10

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

11

intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to

12

comply may result in dismissal of this action.

Release

13

B.

14

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

15

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

16

for other relief with a notice of change of address. Failure to comply may result in

17

dismissal of this action.

Address Changes

18

C.

19

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

20

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

21

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

22

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

23

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

24

Plaintiff.

25

D.

26

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

27

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

Copies

Possible Dismissal

28

TERMPSREF

-7-

1

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

2

for failure to comply with any order of the Court).

3

IT IS ORDERED:

4

(1)

Plaintiff’s November 13, 2012 Motion to Seal Record Support of First

5

Amended Complaint (Doc. 21) is granted; the Clerk of Court must seal the exhibits to

6

the First Amended Complaint.

7
8

(2)

and Preliminary Injunction (Doc. 23) is denied.

9
10

(3)

13
14

Plaintiff’s November 30, 2012 Motion for Court Orders (Doc. 24) is

denied.

11
12

Plaintiff’s November 13, 2012 Motion for Temporary Restraining Order

(4)

Plaintiff’s January 2, 2013 Motion for Court Order (Doc. 26) is denied as

(5)

Defendants Maricopa County Board of Supervisors, Barker, and Flaggman

moot.

are dismissed without prejudice.

15

(6)

Defendant Alvarez must answer the First Amended Complaint.

16

(7)

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

17

Amended Complaint (Doc. 20), this Order, and both summons and request for waiver

18

forms for Defendant Alvarez.

19

(8)

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

20

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

21

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

22

(9)

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

23

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

24

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

25

whichever is later, the action may be dismissed.

26

16.2(b)(2)(B)(i).

27

(10)

28

TERMPSREF

Fed. R. Civ. P. 4(m); LRCiv

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

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

-8-

1

(11)

The United States Marshal must notify Defendant Alvarez of the

2

commencement of this action and request waiver of service of the summons pursuant to

3

Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendant must include

4

a copy of this Order. The Marshal must immediately file signed waivers of service of

5

the summons. If a waiver of service of summons is returned as undeliverable or is

6

not returned by Defendant within 30 days from the date the request for waiver was

7

sent by the Marshal, the Marshal must:

8
9
10

(a)

personally serve copies of the Summons, First Amended Complaint,

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

11

(b)

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

12

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

13

service of the summons and of the costs subsequently incurred in effecting service

14

upon Defendant. The costs of service must be enumerated on the return of service

15

form (USM-285) and must include the costs incurred by the Marshal for

16

photocopying additional copies of the Summons, First Amended Complaint, or

17

this Order and for preparing new process receipt and return forms (USM-285), if

18

required. Costs of service will be taxed against the personally served Defendant

19

pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise

20

ordered by the Court.

21

(12)

If Defendant agrees to waive service of the Summons and First

22

Amended Complaint, he must return the signed waiver forms to the United States

23

Marshal, not the Plaintiff.

24

(13)

Defendant Alvarez must answer the First Amended Complaint or otherwise

25

respond by appropriate motion within the time provided by the applicable provisions of

26

Rule 12(a) of the Federal Rules of Civil Procedure.

27
28

TERMPSREF

-9-

1

(14)

This matter is referred to Magistrate Judge David K. Duncan pursuant to

2

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

3

authorized under 28 U.S.C. § 636(b)(1).

4

Dated this 11th day of February, 2013.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

TERMPSREF

- 10 -