Johnson v. Juvera et al

Filing 5

ORDER (Service Packet) Plaintiff's Motion for Leave to Proceed in forma pauperis 2 is granted. Counts One and Two are dismissed without prejudice because they are duplicative. The Clerk of Court must send Plaintiff a service packet for defenda nts Juvera, Jackson, Cruz, Brown, and Reed. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge David K. Duncan. Signed by Judge G Murray Snow on 3/27/12. (TLJ)

1

WO

MDR

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Richard Johnson,
Plaintiff,

10
11

vs.

12
Sergeant Juvera, et al.,
13
Defendants.
14

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

No. CV 12-539-PHX-GMS (DKD)
ORDER

15
16

Plaintiff Richard Johnson, who is confined in the Maricopa County Fourth Avenue

17

Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an

18

Application to Proceed In Forma Pauperis (Doc. 2). The Court will order Defendants to

19

answer Count Three of the Complaint and will dismiss Counts One and Two without

20

prejudice.

21

I.

Application to Proceed In Forma Pauperis and Filing Fee

22
23

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

24

The Court will assess an initial partial filing fee of $14.40. The remainder of the fee will be

25

collected monthly in payments of 20% of the previous month’s income each time the amount

26

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

27

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

28
TERMPSREF

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

to the statutory formula.

1

II.

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

III.

Complaint

2

In his three-count Complaint, Plaintiff sues the following Defendants at the Arizona

3

State Prison Complex-Lewis: Sergeant Juvera and Correctional Officer IIs Jackson, David

4

Cruz, Larry Brown, and Mark Reed.

5

Plaintiff alleges that he was subjected to cruel and unusual punishment, in violation

6

of the Eighth Amendment. Plaintiff asserts that Defendants Juvera and Jackson did not

7

require inmates who triggered a metal detector alarm to submit to additional searches or to

8

again pass through the metal detector. Plaintiff also contends that Defendants Cruz and

9

Brown failed to properly control inmate movements, allowing inmates from different

10

buildings, who were supposed to be locked down and kept separate because they had been

11

continually assaulting each other, out of their cells, out of their buildings, onto the recreation

12

field, and through locked fences. Plaintiff also alleges that Defendant Reed was inattentive

13

to his duties and was confused about his duties, permitting inmates onto the yard although

14

they were supposed to be locked into their cells and separated. Plaintiff contends that

15

Defendants and other officers on the yard had an ongoing problem with assaults caused by

16

allowing the same groups of inmates to come into contact with each other when they were

17

supposed to be kept separate because of security concerns.

18

Plaintiff contends that, as a result of Defendants’ actions and inactions, he was

19

stabbed. He asserts that an inmate who triggered the metal detector alarm but was permitted

20

by Defendants Juvera and Jackson to pass through without an additional search, was involved

21

in Plaintiff’s stabbing. He also contends that the officers purposely allowed the assault to

22

occur.

23

Plaintiff’s allegations in all three counts are essentially the same,1 although in Count

24

Three, Plaintiff alleges that Defendants acted with deliberate indifference and knew their

25

actions created a substantial risk or had a subjective awareness of a risk.

26

In his Request for Relief, Plaintiff seeks injunctive relief and monetary damages.

27
1

28
TERMPSREF

The Court notes that Plaintiff makes additional allegations against nonparties in
Counts One and Two.
-3-

1

IV.

Discussion

2

Liberally construed, Plaintiff has stated an Eighth Amendment deliberate indifference

3

claim. Because Counts One and Two are duplicative of the more clearly pled allegations in

4

Count Three, the Court will dismiss Counts One and Two and will require Defendants to

5

answer Count Three.

6

V.

Warnings

7

A.

Release

8

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

9

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

10

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

11

in dismissal of this action.

12

B.

Address Changes

13

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

14

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

15

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

16

action.

17

C.

Copies

18

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

19

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

20

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

21

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

22

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

23

D.

Possible Dismissal

24

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

25

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

26

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

27

comply with any order of the Court).

28
TERMPSREF

-4-

1

IT IS ORDERED:

2

(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

3

(2)

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

4
5
6

Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $14.40.
(3)

Counts One and Two are dismissed without prejudice because they are

duplicative.

7

(4)

Defendants Juvera, Jackson, Cruz, Brown, and Reed must answer Count Three.

8

(5)

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

9
10
11

Complaint (Doc. 1), this Order, and both summons and request for waiver forms for
Defendants Juvera, Jackson, Cruz, Brown, and Reed.
(6)

Plaintiff must complete2 and return the service packet to the Clerk of Court

12

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

13

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

14

(7)

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

15

complete service of the Summons and Complaint on a Defendant within 120 days of the

16

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

17

action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv

18

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

19

(8)

20
21

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

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

The United States Marshal must notify Defendants of the commencement of

22

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

23

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

24

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

25
26
27
28
TERMPSREF

2

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.
-5-

1

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

2

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

3

Marshal must:

4

(a) personally serve copies of the Summons, Complaint, and this Order upon

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

Procedure, unless otherwise ordered by the Court.

15

(10)

16

A Defendant who agrees to waive service of the Summons and Complaint

must return the signed waiver forms to the United States Marshal, not the Plaintiff.

17

(11)

Defendants must answer the Complaint or otherwise respond by appropriate

18

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

19

Rules of Civil Procedure.

20

(12)

Any answer or response must state the specific Defendant by name on whose

21
22

does not identify the specific Defendant by name on whose behalf it is filed.

23

....

24

....

25

....

26

....

27

....

28
TERMPSREF

behalf it is filed. The Court may strike any answer, response, or other motion or paper that

....
-6-

1

(13)

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

2

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

3

under 28 U.S.C. § 636(b)(1).

4

DATED this 27th day of March, 2012.

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

-7-