Pearson v. Arpaio et al

Filing 7

ORDER (Service Packet) Plaintiff's Application to Proceed In Forma Pauperis is granted. (Doc. 5 .) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an in itial partial filing fee of $9.49. Defendants Arpaio and the Maricopa County Board of Supervisors must answer Counts I-III. The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and both summons an d request for waiver forms for Defendants Arpaio and the Maricopa County Board of Supervisors. 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 Lawrence O. Anderson pursuant to Rules 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 4/26/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dana Lee Pearson,
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Plaintiff,
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vs.
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Joseph M. Arpaio, et al.,
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Defendants.
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No. CV 12-2212-PHX-DGC (LOA)
ORDER

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Plaintiff Dana Lee Pearson, who is confined in the Arizona State Prison Complex,

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Eggers Unit, in Douglas, Arizona, has filed a pro se civil rights Complaint pursuant to 42

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U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 5.) The Court

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will order Defendants Arpaio and the Maricopa County Board of Supervisors to answer

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Counts I-III of the Complaint.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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

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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 assess an initial partial filing fee of $9.49. The remainder of the fee will be

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

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

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

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to the statutory formula.

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II.

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Statutory Screening of Prisoner Complaints
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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III.

Complaint

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Plaintiff alleges three counts concerning his conditions of confinement while he was
incarcerated in Maricopa County Jails. Plaintiff sues Maricopa County Sheriff Joseph M.
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Arpaio and the Maricopa County Board of Supervisors.

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Plaintiff seeks injunctive,

compensatory, and punitive relief.

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In Count I, Plaintiff asserts that Arpaio sets policy and directs his staff to overcrowd

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the intake system, which are so overcrowded as to cause physical combat between pretrial

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detainees.

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communicable diseases. He further contends that the toilets were never cleaned while he was

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held. He contends that the Board of Supervisors are aware of the conditions and complaints,

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but have failed to act. Plaintiff contends that these conditions were present in the Madison

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intake and court-holding cells, the Lower Buckeye Jail, Fourth Avenue Jail, and the Towers

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Jail. He further alleges that portable beds or “boats” were used at the Lower Buckeye Jail.

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In the Towers Jail, more than two inmates were assigned to each cell, cleaning products were

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not provided, and feces, rodents, and insects were common. Recreation outside was only

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provided once per week. At Madison, he alleges that 50-80 inmates were held in intake cells

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measuring approximately 10 by 20 feet, he was not provided a blanket or matt, there was no

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place to sit other than the floor, which was dirty and cold. Some of the inmates were

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coughing and admitted to having HIV or Hepatitis C, or other diseases. Staff failed to

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regularly observe intake areas for the health and safety of pretrial detainees.

He contends that there was no ventilation or screening of inmates for

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In Count II, Plaintiff claims that Arpaio sets policy and that the Board of Supervisors

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fails to act to prevent violations pursuant to the Arpaio’s policies. Plaintiff alleges that

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Arpaio directs his staff to feed pretrial detainees only two meals per day, which are small and

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of bad quality and lack necessary nutrition. He further alleges that deputies refused to

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provide substitution for rotten items. Plaintiff further contends that while Arpaio allows

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detainees with money to possess commissary items in their cells, he will not allow detainees

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without funds to save portions of the jail-provided meals for consumption later in the day.

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He alleges that the intervals between meals caused him “extreme hunger” pangs.

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Supervisors. He contends that both fail to provide the minimum standard conditions in

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In Count III, Plaintiff alleges that Arpaio sets policy and is subject to the Board of

Maricopa County Jails: Madison intake and court holding cells are rusty, moldy, lack proper
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ventilation, and cleaning products, including hand soap, were never provided. Further, toilets

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were green and slimey with excrement. Most faucets lacked pressure or flow sufficient to

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wash hands. He contends the same conditions were present at the Fourth Avenue Jail plus

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insufficient toilet paper was provided causing a lack of toilet paper for hours, before staff

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would provide more. He contends that the Towers Jail lacked clean air ventilation, the

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showers had dry rot holes with mold and would back up so as to cause Plaintiff and others

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to stand in “sewer water” to bathe, and that there were rodents and insects throughout,

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including sleeping areas.

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IV.

Claims for Which an Answer Will be Required

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Liberally construed, Plaintiff has stated a claim in Counts I -III against Sheriff Arpaio

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and the Maricopa County Board of Supervisors. The Court will require Defendants Arpaio

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and the Board to respond to those counts.

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V.

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

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

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

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C.

Copies

an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply
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may result in the filing being stricken without further notice to Plaintiff.

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D.

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 v. Bonzelet,

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

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comply with any order of the Court).

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 5.)

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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 assessed an initial partial filing fee of $9.49.
(3)

Defendants Arpaio and the Maricopa County Board of Supervisors must

answer Counts I-III.
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The Clerk of Court must send Plaintiff a service packet including the

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Complaint (Doc. 1), this Order, and both summons and request for waiver forms for

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Defendants Arpaio and the Maricopa County Board of Supervisors.

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(5)

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

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

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

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(6)

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

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

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

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

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

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(7)

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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 Defendants 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 Federal
Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule
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4.1(c) of the Arizona Rules of Civil Procedure. The notice to Defendants must include a

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

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

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Defendant pursuant to Rule 4(e)(2) Rule 4(j)(2) of the Federal Rules of Civil

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Procedure; and

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

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

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

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

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

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

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

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

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Procedure, unless otherwise ordered by the Court.

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(9)

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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.
(10)

Defendant must answer the Complaint or otherwise respond by appropriate

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

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Rules of Civil Procedure.

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(11)

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

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

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

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(12)

This matter is referred to Magistrate Judge Lawrence O. Anderson 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 26th day of April, 2013.

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