Rivera v. Maricopa County Lower Buckeye Jail et al

Filing 5

ORDER that Plaintiff's 2 Application to Proceed In Forma Pauperis is granted. Plaintiff must pay the $350.00 filing fee. The 1 Complaint is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order i s filed to file a first amended complaint in compliance with this Order. If Plaintiff fails to comply, 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 must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Senior Judge Robert C Broomfield on 2/5/2013. (Attachments: # 1 PCR-Form)(LFIG)

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1 WO KM 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Ramon Manuel Rivera, 11 Plaintiff, 12 13 14 No. CV 12-2567-PHX-RCB (JFM) vs. ORDER Maricopa County Lower Buckeye Jail, et al., 15 Defendants. 16 17 Plaintiff Ramon Manuel Rivera, who is confined in the Maricopa County Lower 18 Buckeye Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 19 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will 20 dismiss the Complaint with leave to amend. 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 $41.96. The remainder of the fee will 25 be collected monthly in payments of 20% of the previous month’s income each time the 26 amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a 27 separate Order requiring the appropriate government agency to collect and forward the 28 JDDL-K Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. fees according to the statutory formula. 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 6 which relief may be granted, or that seek monetary relief from a defendant who is 7 immune from such relief. 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 10 does not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 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 17 content that allows the court to draw the reasonable inference that the defendant is liable 18 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 19 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 20 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 21 specific factual allegations may be consistent with a constitutional claim, a court must 22 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 23 at 681. 24 25 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 26 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 27 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 28 JDDL-K But as the United States Court of Appeals for the Ninth Circuit has instructed, Pardus, 551 U.S. 89, 94 (2007) (per curiam)). -2- 1 If the Court determines that a pleading could be cured by the allegation of other 2 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 3 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The 4 Court should not, however, advise the litigant how to cure the defects. This type of 5 advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v. 6 Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to 7 decide whether the court was required to inform a litigant of deficiencies). The Court 8 will dismiss Plaintiff’s Complaint for failure to state a claim, but because the Complaint 9 may possibly be saved by amendment, will dismiss the Complaint with leave to amend. 10 III. 11 12 Complaint Plaintiff names the Maricopa County Lower Buckeye Jail and the Maricopa County Sheriff’s Office as Defendants in the Compliant. 13 Plaintiff raises three claims for relief in which he alleges his right to be free from 14 cruel and unusual punishment was violated when he was required to use an upstairs 15 visitation room despite the fact that he is disabled and uses a wheelchair. In Count One, 16 Plaintiff claims he was forced to use the upstairs visitation room or miss his visit and was 17 not provided with assistance from jail staff. In Count Two, Plaintiff alleges that after the 18 visit he was asked to return to his cell but was not given assistance. Plaintiff claims he 19 attempted to climb down the stairs himself, but fell. In Count Three, Plaintiff claims that 20 the Maricopa County Sheriff’s Office failed to comply with the guidelines set forth in the 21 American’s with Disabilities Act. 22 23 Plaintiff seeks money damages. IV. Failure to State a Claim 24 25 Claims under § 1983 are directed at “bodies politic and corporate.” Monell v. Dept. of 26 Soc. Serv. of City of N.Y., 436 U.S. 658, 688-89 (1978). Under the Civil Rights Act of 27 1871, Congress intended municipalities and other local government units to be included 28 JDDL-K The Maricopa County Lower Buckeye Jail is not a proper Defendant to this action. among those persons to whom § 1983 applies. Id. at 689-690. Because a jail is neither a -3- 1 corporation nor a body politic, it is not a person for purposes of § 1983, and accordingly, 2 the Maricopa County Lower Buckeye Jail will be dismissed. 3 The Maricopa County Sheriff’s Department is not a proper defendant. In Arizona, 4 the responsibility of operating jails and caring for prisoners is placed by law upon the 5 sheriff. See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. § 31-101. A sheriff’s office 6 is simply an administrative creation of the county sheriff to allow him to carry out his 7 statutory duties and not a “person” amenable to suit pursuant to § 1983. Accordingly, the 8 Maricopa County Sheriff’s Department will be dismissed from this action. 9 10 As no proper Defendant remains, the Court will dismiss the Complaint. V. Leave to Amend 11 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to 12 state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 13 first amended complaint to cure the deficiencies outlined above. The Clerk of Court will 14 mail Plaintiff a court-approved form to use for filing a first amended complaint. If 15 Plaintiff fails to use the court-approved form, the Court may strike the amended 16 complaint and dismiss this action without further notice to Plaintiff. 17 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 18 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 19 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 20 do; (4) how the action or inaction of that Defendant is connected to the violation of 21 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 22 that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 23 24 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 25 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 26 failure to state a claim. 27 Defendants have violated a constitutional right are not acceptable and will be 28 JDDL-K Plaintiff must repeat this process for each person he names as a Defendant. If dismissed. Conclusory allegations that a Defendant or group of -4- 1 Plaintiff should note that pretrial detainee’s claim for unconstitutional conditions 2 of confinement arises from the Fourteenth Amendment Due Process Clause rather than 3 from the Eighth Amendment prohibition against cruel and unusual punishment. Bell v. 4 Wolfish, 441 U.S. 520, 535 and n.16 (1979). Nevertheless, the same standards are 5 applied, requiring proof that the defendant acted with deliberate indifference. See Frost 6 v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 7 Deliberate indifference is a higher standard than negligence or lack of ordinary 8 due care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To 9 state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, the 10 alleged constitutional deprivation must be, objectively, “sufficiently serious”; the 11 official’s act or omission must result in the denial of “the minimal civilized measure of 12 life’s necessities.” Id. at 834. Second, the prison official must have a “sufficiently 13 culpable state of mind,” i.e., he must act with deliberate indifference to inmate health or 14 safety. Id. In defining “deliberate indifference” in this context, the Supreme Court has 15 imposed a subjective test: “the official must both be aware of facts from which the 16 inference could be drawn that a substantial risk of serious harm exists, and he must also 17 draw the inference.” Id. at 837 (emphasis added). Accordingly, Plaintiff identify and 18 name as defendants the individuals who violated his constitutional rights and must 19 describe whether each individual acted with deliberate indifference to a threat to his 20 safety. 21 Plaintiff must clearly designate on the face of the document that it is the “First 22 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 23 entirety on the court-approved form and may not incorporate any part of the original 24 Complaint by reference. Plaintiff may include only one claim per count. 25 26 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 27 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 28 JDDL-K A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised -5- 1 in the original complaint is waived if it is not raised in a first amended complaint. King v. 2 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 3 VI. Warnings 4 A. 5 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his 6 release. Also, within 30 days of his release, he must either (1) notify the Court that he 7 intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to 8 comply may result in dismissal of this action. 9 B. Release Address Changes 10 Plaintiff must file and serve a notice of a change of address in accordance with 11 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 12 for other relief with a notice of change of address. Failure to comply may result in 13 dismissal of this action. 14 C. 15 Plaintiff must submit an additional copy of every filing for use by the Court. See 16 LRCiv 5.4. Failure to comply may result in the filing being stricken without further 17 notice to Plaintiff. Copies 18 19 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 20 fails to file an amended complaint correcting the deficiencies identified in this Order, the 21 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 22 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 23 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more 24 prior occasions, while incarcerated or detained in any facility, brought an action or appeal 25 in a court of the United States that was dismissed on the grounds that it is frivolous, 26 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 27 is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 28 JDDL-K D. ….. Possible “Strike” -6- 1 E. 2 If Plaintiff fails to timely comply with every provision of this Order, including 3 these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 4 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any 5 order of the Court). 6 IT IS ORDERED: Possible Dismissal 7 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 8 (2) As required by the accompanying Order to the appropriate government 9 10 11 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $41.96. (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 12 has 30 days from the date this Order is filed to file a first amended complaint in 13 compliance with this Order. 14 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 15 Court must, without further notice, enter a judgment of dismissal of this action with 16 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g). 17 18 19 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 5th day of February, 2013. 20 21 22 23 24 25 26 27 28 JDDL-K -7-

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