Haley v. Arpaio

Filing 6

ORDER 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 not assessed an initial partial f iling fee. 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 wit hin 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 Senior Judge Robert C Broomfield on 4/26/2012. (Attachments: # 1 Instructions and form for filing a prisoner civil rights complaint)(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Russel Edward Haley,
Plaintiff,

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vs.

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Joseph Arpaio,
Defendant.

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No. CV 12-532-PHX-RCB (ECV)
ORDER

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Plaintiff Russel Edward Haley, who is confined in the Arizona State Prison Complex-

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Douglas, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an

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Application to Proceed In Forma Pauperis. The Court will dismiss the Complaint with leave

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to amend.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

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The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory

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fee will be collected monthly in payments of 20% of the previous month’s income each time

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the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a

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separate Order requiring the appropriate government agency to collect and forward the fees

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according to the statutory formula.

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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

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II.

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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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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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). The Court will dismiss Plaintiff’s Complaint

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for failure to state a claim, but because the Complaint may possibly be saved by amendment,

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will dismiss the Complaint with leave to amend.

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III.

Complaint

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Plaintiff names Maricopa County Sheriff Joseph Arpaio as Defendant in the

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Complaint. Plaintiff raises one claim for relief in which he alleges that his Eighth

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Amendment rights were violated when MCSO staff and screening officers failed to segregate

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mentally ill inmates from the general population. Plaintiff alleges that these inmates were

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unable to flush their toilets, sanitize their cells, take out their trash, or change their bedding.

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Plaintiff further claims that he was subjected to their constant violent outbursts and that these

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inmates were “prone to spreading communicable diseases [be]cause they wallow in bodily

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fluids and excrement.”
Plaintiff seeks money damages.

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IV.

Failure to State a Claim

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the Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment

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prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 and

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n.16 (1979). Nevertheless, the same standards are applied, requiring proof that the defendant

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acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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Deliberate indifference is a higher standard than negligence or lack of ordinary due

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care for the prisoner’s safety. Id. at 835. To state a claim of deliberate indifference,

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plaintiffs must meet a two-part test. First, the alleged constitutional deprivation must be,

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A pretrial detainee’s claim for unconstitutional conditions of confinement arises from

objectively, “sufficiently serious”; the official’s act or omission must result in the denial of
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“the minimal civilized measure of life’s necessities.” Id. at 834. Second, the prison official

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must have a “sufficiently culpable state of mind,” i.e., he must act with deliberate

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indifference to inmate health or safety. Id. In defining “deliberate indifference” in this

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context, the Supreme Court has imposed a subjective test: “the official must both be aware

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of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference.” Id. at 837 (emphasis added).

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Plaintiff has not alleged facts demonstrating that Defendant Arpaio was deliberately

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indifferent to a serious risk of harm to Plaintiff’s health or safety. Plaintiff has not

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demonstrated that Defendant Arpaio was aware of the conditions at issue in Plaintiff’s

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Complaint, and failed to act, or that Defendant Arpaio formed policies that resulted in harm

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to Plaintiff. Further, Plaintiff has not described what injury he suffered as a result of the

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conditions of his confinement.

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V.

Leave to Amend

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

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a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first

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amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail

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

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to use the court-approved form, the Court may strike the amended complaint and dismiss this

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action without further notice to Plaintiff.

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

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

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

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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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565, 567 (9th Cir. 1987).

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VI.

Warnings

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A.

Release

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

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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

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in dismissal of this action.

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B.

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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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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to Plaintiff.

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C.

Copies

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D.

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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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Possible “Strike”

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

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E.

Possible Dismissal

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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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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 3) is granted.

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(2)

As required by the accompanying Order to the appropriate government agency,

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Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3)

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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.
(4)

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

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

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(5)

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

rights complaint by a prisoner.
DATED this 26th day of April, 2012.

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