Henderson v. Arpaio

Filing 16

ORDER (Service Packet): ORDERED that Count Two is dismissed without prejudice. Defendant Arpaio must answer Count One of the Second Amended Complaint. The Clerk of Court must send Plaintiff a service packet including the 14 Second Amended Complai nt, this Order, and both summons and request for waiver forms for Defendant Arpaio. 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 James F. Metcalf for all pretrial proceedings. Signed by Judge G Murray Snow on 3/12/2013. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tommie Lee Henderson, Jr.,

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No. CV 12-1438-PHX-GMS (JFM)

Plaintiff,
vs.

ORDER

Joseph M. Arpaio,

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Defendant.

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On July 3, 2012, Plaintiff Tommie Lee Henderson, Jr., who is confined in the

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Maricopa County Lower Buckeye Jail, filed a pro se civil rights Complaint pursuant to

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42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In an October 10,

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2012 Order, the Court granted the Application to Proceed and dismissed the Complaint

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because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an

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amended complaint that cured the deficiencies identified in the Order.

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On October 29, 2012, Plaintiff filed his First Amended Complaint. In a November

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26, 2012 Order, the Court dismissed the First Amended Complaint because Plaintiff had

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failed to state a claim. The Court gave Plaintiff 30 days to file a second amended

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complaint that cured the deficiencies identified in the Order.

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On December 11, 2012, Plaintiff filed a Second Amended Complaint (Doc. 14).

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The Court will order Defendant Arpaio to answer Count One of the Second Amended

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Complaint and will dismiss the remaining claim without prejudice.

TEMPSREF

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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

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

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

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

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

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immune from such relief. 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

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

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defendant-unlawfully-harmed-me accusation.”

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

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conclusory statements, do not suffice.” Id.

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

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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

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

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

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

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

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

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

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at 681.

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

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

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

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

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

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II.

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Second Amended Complaint
Plaintiff names Maricopa County Sheriff Joseph Arpaio as Defendant in the

Second Amended Complaint and raises two claims for relief.

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In Count One, Plaintiff claims that his rights under the Americans with Disabilities

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Act (ADA) were violated when jail staff denied him assistance in obtaining his attorney’s

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phone number. Plaintiff claims that he suffers from memory problems as the result of a

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learning disability, diagnosed chemical imbalance, and a head injury. Plaintiff claims

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that upon his arrest, a police officer assisted Plaintiff in obtaining the phone number of

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Plaintiff’s attorney and wrote it on a piece of paper. When Plaintiff was booked into the

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Maricopa County Jail, Plaintiff’s personal possessions, including the phone number, were

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confiscated. Plaintiff claims that jail staff refused to assist him in obtaining the phone

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number and that as a result, he was excluded from using the phones, canteen, and mail.

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Specifically, Plaintiff states that he was unable to use the phone because he could not call

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an outside party set up the required pre-pay service. Plaintiff claims that he was therefore

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denied participation in the jail’s services because of his disability.

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In Count Two, Plaintiff claims that the jail’s failure to assist him and to comply
with the ADA violated his Fourteenth Amendment due process rights.

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Plaintiff seeks injunctive relief and money damages.
III.

Failure to State a Claim

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

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

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

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

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

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In Count Two, Plaintiff fails to adequately allege how Defendant Arpaio’s policies

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violated his due process rights, what injuries resulted from Defendant Arpaio’s policies,

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or how his equal protection rights were violated by the policies. The Court will therefore

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dismiss Count Two for failure to state a claim.

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IV.

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Claims for Which an Answer Will be Required
Liberally construed, Plaintiff has adequately stated an ADA claim in Count One.

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The Court will require Defendant Arpaio to answer Count One.

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V.

Warnings

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A.

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

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

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

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comply may result in dismissal of this action.

Release

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B.

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

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

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

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dismissal of this action.

Address Changes

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C.

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

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

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

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

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

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Plaintiff.

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D.

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

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

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

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

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TERMPSREF

Copies

Possible Dismissal

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IT IS ORDERED:

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(1)

Count Two is dismissed without prejudice.

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(2)

Defendant Arpaio must answer Count One of the Second Amended

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Complaint.

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(3)

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

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Second Amended Complaint (Doc. 14), this Order, and both summons and request for

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waiver forms for Defendant Arpaio.

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(4)

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

within 21 days of the date of filing of this Order. The United States Marshal will not
provide service of process if Plaintiff fails to comply with this Order.

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(5)

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

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

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

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whichever is later, the action may be dismissed.

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

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(6)

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

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

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

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(7)

The United States Marshal must notify Defendant of the commencement of

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

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Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this

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Order.

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summons. If a waiver of service of summons is returned as undeliverable or is not

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returned by Defendant within 30 days from the date the request for waiver was sent

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by the Marshal, the Marshal must:

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The Marshal must immediately file signed waivers of service of the

(a)

personally serve copies of the Summons, Second Amended

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Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal

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Rules of Civil Procedure; and

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(b)

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

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

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

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

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

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

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

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

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

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ordered by the Court.

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(8)

If Defendant agrees to waive service of the Summons and Second

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

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Marshal, not the Plaintiff.

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(9)

Defendant must answer the Second Amended Complaint or otherwise

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

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

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(10)

This matter is referred to Magistrate Judge James F. Metcalf pursuant to

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

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

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Dated this 12th day of March, 2013.

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TERMPSREF

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