Hughes v. Arpaio et al

Filing 9

ORDER that Plaintiff's 7 MOTION is denied as moot. Defendants Arpaio, Maricopa County Sheriff's Office, Maricopa County Jail Security/Hospital Scheduling Staff, and Correctional Health Services are dismissed without prejudice. Defend ant Friedman must answer the Complaint. The Clerk of Court must send Plaintiff a service packet including the 1 Complaint, this Order, and both summons and request for waiver forms for Defendant Friedman. Plaintiff must complete and return the service packet within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Lawrence O. Anderson pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings. Signed by Judge G Murray Snow on 6/21/2012. (See attached PDF for complete details.)(LFIG)

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1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cory Allen Hughes, 10 Plaintiff, 11 vs. 12 Jospeh M. Arpaio, et al., 13 Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 12-697-PHX-GMS (LOA) ORDER 14 15 On April 2, 2012, Plaintiff Cory Allen Hughes, who was then confined in the 16 Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 17 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. On April 17, 18 2012, Plaintiff filed a Notice of Change of Address indicating that he was no longer in 19 custody. In an April 27, 2012 Order, the Court granted the Application to Proceed and, 20 because Plaintiff was no longer in custody, gave him 30 days to either pay the full filing fee 21 or show good cause why he could not pay. 22 On May 29, 2012, Plaintiff filed a Motion (Doc. 7), seeking an extension of time to 23 pay the filing fee because he is indigent and seriously mentally ill. He states that he needs 24 an extension so doctors can stabilize him and, once that happens, he can work and then pay 25 the filing fee. 26 27 TERMPSREF 28 On June 19, 2012, Plaintiff filed a Notice of Change of Address, indicating that he is again confined in the Mariciopa County Fourth Avenue Jail. 1 I. May 29, 2012 Motion 2 The Court will deny as moot Plaintiff’s May 29, 2012 Motion. Because Plaintiff is 3 again confined, he can avail himself of the partial payment provisions of 28 U.S.C. 4 § 1915(b)(1). The statutory filing fee will be collected monthly in payments of 20% of the 5 previous month’s income each time the amount in the account exceeds $10.00. 28 U.S.C. 6 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 7 agency to collect and forward the fees according to the statutory formula. 8 II. Statutory Screening of Prisoner Complaints 9 The Court is required to screen complaints brought by prisoners seeking relief against 10 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 11 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 12 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 13 be granted, or that seek monetary relief from a defendant who is immune from such relief. 14 28 U.S.C. § 1915A(b)(1), (2). 15 A pleading must contain a “short and plain statement of the claim showing that the 16 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 17 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 18 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 19 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements, do not suffice.” Id. 21 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 22 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 23 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 24 that allows the court to draw the reasonable inference that the defendant is liable for the 25 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 26 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 27 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 28 TERMPSREF -2- 1 allegations may be consistent with a constitutional claim, a court must assess whether there 2 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 3 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 4 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 5 Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards 6 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 7 94 (2007) (per curiam)). 8 III. Complaint 9 In his one-count Complaint, Plaintiff sues the following Defendants: Maricopa County 10 Sheriff Joseph M. Arpaio, the Maricopa County Sheriff’s Office, Maricopa County Jail 11 Security/Hospital Scheduling Staff, Dr. Friedman, and Correctional Health Services. 12 Plaintiff alleges a violation of the Eighth Amendment prohibition against cruel and 13 unusual punishment regarding to his medical care. He contends that an orthopedic surgeon 14 ordered Plaintiff to be returned quickly for a surgery on his broken clavicle, but “[j]ail 15 officials went against” the surgeon’s orders and waited seven weeks before returning Plaintiff 16 for the surgery. Plaintiff asserts that not only did he have to suffer with a broken bone for 17 seven weeks, he also suffered excessive trauma because, during the surgery, the surgeon had 18 to “scoop away” bone growth. Plaintiff also alleges that he was given ibuprofen, rather than 19 the pain reliever prescribed by the surgeon, and that ibuprofen is toxic to his liver because 20 he has Hepatitis-C. 21 Plaintiff claims that Defendant Friedman was indifferent to his medical needs because 22 he did not enforce the surgeon’s order for a quick return for a surgery, permitted Plaintiff to 23 walk around for seven weeks with a bone that needed to be set, and refused to order the 24 medications prescribed by the surgeon. Plaintiff asserts that Defendant Friedman works for 25 Defendant Correctional Health Services and that Defendants Arpaio and Maricopa County 26 Sheriff’s Office are named as Defendants because of “any delays in transportation they 27 caused.” 28 TERMPSREF In his Request for Relief, Plaintiff seeks monetary damages. -3- 1 IV. Failure to State a Claim 2 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 3 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. 4 Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, 5 a liberal interpretation of a civil rights complaint may not supply essential elements of the 6 claim that were not initially pled. Id. 7 A. Improper Defendants 8 Defendant Correctional Health Services is an improper Defendant. Municipalities and 9 other local governing bodies are included among those “persons” who may be sued under 10 § 1983. Monell v. Department of Social Services of New York, 436 U.S. 658, 690-91 11 (1978). Because Correctional Health Services is an administrative subdivision of Maricopa 12 County and not a municipal corporation, a local governing body or a private corporation, it 13 is not a “person” amenable to suit under § 1983. Maricopa County is responsible for 14 providing medical care to county jail inmates. See Ariz. Rev. Stat. § 11-291(A). Any actions 15 concerning a county policy must be brought against the county itself and not against an 16 administrative subdivision of the county. Thus, Defendant Correctional Health Services is 17 an improper defendant and will be dismissed from this action. 18 Defendant Maricopa County Sheriff’s Office is not a proper defendant. In Arizona, 19 the responsibility of operating jails and caring for prisoners is placed by law upon the sheriff. 20 See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. § 31-101. A sheriff’s office is simply 21 an administrative creation of the county sheriff to allow him to carry out his statutory duties 22 and not a “person” amenable to suit pursuant to § 1983. Moreover, it is the county, not the 23 county sheriff, that is responsible for providing medical care to county jail inmates. See 24 Ariz. Rev. Stat. § 11-291(A). Accordingly, the Court will dismiss Defendant Maricopa 25 County Sheriff’s Office. 26 27 To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific 28 TERMPSREF B. Defendant Maricopa County Jail Security/Hospital Scheduling Staff injury as a result of specific conduct of a defendant and show an affirmative link between the -4- 1 injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 2 (1976). Conclusory allegations that a group of Defendants have violated a constitutional 3 right are not acceptable and will be dismissed. 4 To the extent Plaintiff’s allegations regarding “jail officials” could be construed as a 5 reference to Defendant Maricopa County Jail Security/Hospital Scheduling Staff, Plaintiff’s 6 allegations are nothing more than vague and conclusory allegations against a group of 7 unnamed individuals. This is insufficient. Therefore, the Court will dismiss without 8 prejudice the Defendant Maricopa County Jail Security/Hospital Scheduling Staff. 9 C. Defendant Arpaio 10 Not every claim by a prisoner relating to inadequate medical treatment states a 11 violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a 12 plaintiff must show that the defendants acted with “deliberate indifference to serious medical 13 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 14 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need” by demonstrating 15 that failure to treat the condition could result in further significant injury or the unnecessary 16 and wanton infliction of pain and (2) the defendant’s response was deliberately indifferent. 17 Jett, 439 F.3d at 1096 (quotations omitted). 18 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 19 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know 20 of and disregard an excessive risk to inmate health; “the official must both be aware of facts 21 from which the inference could be drawn that a substantial risk of serious harm exists, and 22 he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate 23 indifference in the medical context may be shown by a purposeful act or failure to respond 24 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 439 25 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally 26 denies, delays, or interferes with medical treatment or by the way prison doctors respond to 27 the prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 28 TERMPSREF -5- 1 Deliberate indifference is a higher standard than negligence or lack of ordinary due 2 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 3 negligence will constitute deliberate indifference.” Clement v. California Dep’t of 4 Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter 5 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 6 “medical malpractice” do not support a claim under § 1983). “A difference of opinion does 7 not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. 8 Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is 9 insufficient to state a claim against prison officials for deliberate indifference. See Shapley 10 v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference 11 must be substantial. The action must rise to a level of “unnecessary and wanton infliction 12 of pain.” Estelle, 429 U.S. at 105. 13 Plaintiff’s vague and conclusory allegation that Defendant Arpaio may have caused 14 “delays in transportation” is insufficient to state a deliberate indifference claim against him. 15 Thus, the Court will dismiss without prejudice Defendant Arpiao. 16 V. Claims for Which an Answer Will be Required 17 Liberally construed, Plaintiff has stated a Fourteenth Amendment deliberate 18 indifference claim against Defendant Friedman. The Court will require Defendant Friedman 19 to answer the Complaint. 20 VI. Warnings 21 A. Release 22 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 23 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 24 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 25 in dismissal of this action. 26 27 Plaintiff must file and serve a notice of a change of address in accordance with Rule 28 TERMPSREF B. Address Changes 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other -6- 1 relief with a notice of change of address. Failure to comply may result in dismissal of this 2 action. 3 C. 4 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy 5 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 6 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit 7 an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply 8 may result in the filing being stricken without further notice to Plaintiff. 9 D. Copies Possible Dismissal 10 If Plaintiff fails to timely comply with every provision of this Order, including these 11 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 12 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 13 comply with any order of the Court). 14 IT IS ORDERED: 15 (1) Plaintiff’s May 29, 2012 Motion (Doc. 7) is denied as moot. 16 (2) Defendants Arpaio, Maricopa County Sheriff’s Office, Maricopa County Jail 17 Security/Hospital Scheduling Staff, and Correctional Health Services are dismissed without 18 prejudice. 19 (3) Defendant Friedman must answer the Complaint. 20 (4) The Clerk of Court must send Plaintiff a service packet including the 21 Complaint (Doc. 1), this Order, and both summons and request for waiver forms for 22 Defendant Friedman. 23 (5) Plaintiff must complete and return the service packet to the Clerk of Court 24 within 21 days of the date of filing of this Order. The United States Marshal will not provide 25 service of process if Plaintiff fails to comply with this Order. 26 27 (6) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on Defendant within 120 days of the filing 28 TERMPSREF -7- 1 of the Complaint or within 60 days of the filing of this Order, whichever is later, the action 2 may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i). 3 4 5 (7) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. (8) The United States Marshal must notify Defendant of the commencement of this 6 action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal 7 Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. The 8 Marshal must immediately file signed waivers of service of the summons. If a waiver 9 of service of summons is returned as undeliverable or is not returned by Defendant 10 within 30 days from the date the request for waiver was sent by the Marshal, the 11 Marshal must: 12 13 (a) personally serve copies of the Summons, Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and 14 (b) within 10 days after personal service is effected, file the return of service 15 for Defendant, along with evidence of the attempt to secure a waiver of service of the 16 summons and of the costs subsequently incurred in effecting service upon Defendant. 17 The costs of service must be enumerated on the return of service form (USM-285) and 18 must include the costs incurred by the Marshal for photocopying additional copies of 19 the Summons, Complaint, or this Order and for preparing new process receipt and 20 return forms (USM-285), if required. Costs of service will be taxed against the 21 personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 22 Procedure, unless otherwise ordered by the Court. 23 (9) 24 25 If Defendant agrees to waive service of the Summons and Complaint, he must return the signed waiver form to the United States Marshal, not the Plaintiff. (10) Defendant must answer the Complaint or otherwise respond by appropriate 26 motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 27 Rules of Civil Procedure. 28 TERMPSREF -8- 1 (11) This matter is referred to Magistrate Judge Lawrence O. Anderson 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 21st day of June, 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 -9-

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